Petition for Writ of Certiorari — Alaska Airlines, Inc. v. Eid

i) » Suprame Court, U.S.

7 (0 eas

an a 10-962 «gan 24 201

OFFICE OF THE

In The CLERK

Supreme Court of the United States

&

ALASKA AIRLINES, INC., PETITIONER,

UV,

AZZA E1D, AMRE R. GINENA,

NAHID I. GINENA, REDA A. GINENA,

SABRINA KOBERT, M. SAMIR MANSOUR,

NAZMI N. NAZMI, M. Maapy H. RASIKH,

AND HEBA NAZMI

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

*

DON G. RUSHING DEANNE E. MAYNARD

WILLIAM V. O’CONNOR Counsel of Record

ELLEN N. ADLER SETH M. GALANTER

MORRISON & FOERSTER LLP MORRISON & FOERSTER LLP

12531 High Bluff Drive 2000 Pennsylvania Ave., N.W.

Suite 100 Washington, D.C. 20006

San Diego, CA 92130 (202) 887-8740

dmaynard@mofo com

JANUARY 24, 2011

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342 2831

QUESTION PRESENTED

Article 10 of the Tokyo Convention of 1963 af-

fords immunity from civil suits to the aircraft captain

and the airline regarding actions taken on inter-

national flights whenever the captain acts in compli-

ance with the Convention. Articles 6 and 8 of the

Convention authorize the captain to take reasonable

measures when the captain has “reasonable grounds

to believe” that a passenger has committed or is

about to commit any act that may, or does, jeopardize

safety, good order, or discipline on his aircraft. The

question presented is:

Whether the Tokyo Convention requires defer-

ence to be given to the aircraft captain’s decision,

based on reports received from the cabin crew, to take

action in response to passenger conduct that may

jeopardize the safety of the aircraft or of persons or

property therein or good order and discipline on

board.

PARTIES TO THE PROCEEDING

The parties are as stated in the caption.

RULE 29.6 CORPORATE

DISCLOSURE STATEMENT

Alaska Air Group, Inc. holds all of the shares of

petitioner Alaska Airlines, Inc. No publicly-traded

company owns more than 10% of Alaska Air Group,

Inc.

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES TO THE PROCEEDING

RULE 29.6 CORPORATE DISCLOSURE STATE-

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

JURISDICTION

TREATY AND STATUTORY PROVISIONS IN-

A. The Treaty

B. Factual Background ..........................00008: =

C. Proceedings Below

REASONS FOR GRANTING THE PETITION....

REVIEW IS NECESSARY BECAUSE THE

NINTH CIRCUITS READING OF THE

TOKYO CONVENTION, WHICH IS CON-

TRARY TO THE UNITED STATES’ UNDER-

STANDING OF THIS TREATY, THREATENS

AVIATION SECURITY

TABLE OF CONTENTS—Continued

Page

A. The Ninth Circuit’s Misinterpretation Of

The International Treaty Governing Air-

line Security Will Deter Aircraft Captains

From Taking Swift Action To Address

Actual Or Potential Security Threats .......

1. The decision below will defeat the

principal purpose of the Tokyo Con-

vention and chill aircraft captains

from making critical security deci-

I sakes 5s etka neice aries

The decision misinterprets the Tokyo

Convention as offering essentially no

defense for captains and airlines sued

under the Warsaw Convention

The Ninth Circuit’s Interpretation Of

The Tokyo Convention Is Contrary To

The Views Of The United States, Which

Should Have Been Accorded Great

The Ninth Circuit’s Decision Conflicts

With Interpretations By Other Federal

Courts Of The Domestic “ounterpart To

The Tokyo Convention

CONCLUSION

TABLE OF CONTENTS—Continued

Appendix A:

Appendix B:

Appendix C:

Appendix D:

Appendix E:

Appendix F:

Appendix G:

Opinion of the United States

Court of Appeals for the Ninth

Circuit, dated July 30, 2010...........

Opinion of the United States

Distnct Court for the District of

Nevada, dated January 5, 2005.....

Opinion of the United States

District Court for the District of

Nevada, dated June 15, 2006.........

Order of the United States Court

of Appeals for the Ninth Circuit,

dated October 26, 2010..............0....

Relevant treaty provisions.............

Relevant statutory provisions........

Amicus Brief of the United

States, filed July 18, 2008..............

...96a

.112a

v1

TABLE OF AUTHORITIES

Page

CASES:

Abbott v. Abbott, 130 S. Ct. 1983 (2010) ....... 0... 24

Al-Qudhai’een v. America West Airlines, Inc.,

267 F. Supp. 2d 841 (S.D. Ohio 2008)............... 28, 31

Al-Watan v. American Airlines, Inc., 658

F. Supp. 2d 816 (E.D. Mich. 2009)...............002. 0. 28

Cerquiera v. American Airlines, Inc., 520 F.3d

1 (lst Cir.), cert. denied, 129 S.Ct. 111

ee eet occ daa aden hanbdesneviaicinn 3. 37, 36, 29

Christel v. AMR Corp., 222 F.Supp. 2d 335

ene avawensneunacesacasaede 28, 31

Cordero v. Cia Mexicana De Aviacion, S.A., 681

ee te COUR GEE, CID on cccnsanciccsccvnccctcocsceas 28, 29, 30

Dasrath v. Continental Airlines, Inc., 467

Br, RI, Be SOL CEPI al. I) vs vinesccncesnocscosessnesvescess 28

Draper v. United States, 358 U.S. 307 (1959)............ 26

Grok v. Ramirez, 540 U.S. 551 (2004).......................... 6

Hammond v. Northwest Airlines, No. 09-12331,

2010 WL 2836899 (E.D. Mich. July 19, 2010)........ 28

Olympic Airways v. Husain, 540 U.S. 644

RSA Ra crete en are ER a 9, 20

Ruta v. Delta Airlines, Inc., 322 F. Supp. 2d 391

I oo oc aniescaiouacntuasawsesmieaswneun’ 28, 31

Williams v. Trans World Airlines, 509 F.2d 942

I NIUE) a cacauudaucenvedeceukdaesaousaes! 27, 28, 30

TABLE OF AUTHORITIES — Continued

Zervigon v. Piedmont Aviation,

F. Supp. 1305 (S.D.N.Y. 1983)

Zikry v. Air Canada, Civil File No. 1716/05

(Israeli Magistrates Ct. 2006)

STATUTES:

49 U.S.C. § 40101(a)(1)

49 U.S.C. § 44902(b) passim

Pub. L. No. 87-197, 75 Stat. 466 (1961)..................2.. 27

INTERNATIONAL MATERIALS:

Convention on Offences and Certain Other Acts

Committed on Board Aircraft, opened for

signature Sept. 14, 1963, 20 U.S.T. 2941

Convention for the Unification of Certain Rules

Relating to International Transportation by

Air, opened for signature Oct. 12, 1929, T.S.

SO I ecg cia cat euncscr eur dcincks tcokuniasidusuuecnenes 9

International Conference on Air Law, Adoption

of National Legislation on Certain Offences

Committed on Board Civil Aircraft (Unru-

ly/Disruptive Passengers), Assemb. Res. A33-

4 (2001)

International Conference on Air Law, Tokyo,

Atem. Sept. TFET, GECRUICG oe ccccecsscsescsessaessescenese passim

V1ll

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES:

Robert P. Boyle & Roy Pulsifer, The Tokyo

Convention on Offenses and Certain Other

Acts Committed on Board Aircraft, 30 J. Air

Le, & Com, BOG Ci) vncississincensuanmanaaee 16

Gerald F. Fitzgerald, The Development of

International Rules Concerning Offences and

Certain Other Acts on Board Aircraft, 1 Can.

¥V.B.. StF Ea Be 1 ROO) visariveeicsemsceoesoeeee 4,18

S. Exec. Doc. No. 0-1, (RGB) nas .ncscccnsncsceucsessnecs 5, 16,17

S. Exec. Rep. No. 90-3 (1969)...............00..... in, 2, ae

S. Hop. No. F1-LOGS (IGT) vsvccssssesseviesversevecaoys 15, 16, 17

PETITION FOR A WRIT OF CERTIORARI

Alaska Airlines, Inc. respectfully petitions for

a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The opinion of the Ninth Circuit (App., infra, 1la-

71a) is reported at 621 F.3d 858 (9th Cir. 2010). The

opinions of the district court (App., infra, 72a-80a,

8la-95a) are not reported, but one of the opinions is

available at 2006 U.S. Dist. LEXIS 45488 (D. Nev.

June 15, 2006).

JURISDICTION

The Ninth Circuit issued its opinion on July 30,

2010. Petitions for rehearing en banc were denied on

October 26, 2010. App., infra, 96a.

This Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1).

TREATY AND STATUTORY

PROVISIONS INVOLVED

The relevant treaty provisions are set forth in the

appendix to this petition at App., infra, 97a-1lla.

The text of 49 U.S.C. § 44902 is set forth in the ap-

pendix to this petition at App., infra, 112a.

INTRODUCTION

This case presents an important question of

treaty interpretation that will affect the ability of

tens of thousands of aircraft captains across the

2

country to maintain safety and security on board

international flights.

The Tokyo Convention of 1963, signed and rati-

fied at a time of increased hijackings and passenger

disturbances, significantly enhanced an_ aircraft

captain’s authority to take action against potential

threats on board international flights. See Conven-

tion on Offences and Certain Other Acts Committed

on Board Aircraft, opened for signature Sept. 14,

1963, 20 U.S.T. 2941 (1969). Specifically, the Tokyo

Convention affords immunity to the captain and the

airline whenever the captain’s action was based on

“reasonable grounds to believe” that a passenger has

committed, or is about to commit, any act that may,

or does, jeopardize safety, good order, or discipline on

board the aircraft. App., infra, 97a, 100a-101la, 102a,

103a (Art. 1(1(b)), 6, 8, 10}.

A divided Ninth Circuit panel, rejecting the views

of the United States as amicus curiae, applied a non-

deferential, negligence-based standard in determin-

ing whether the captain had “reasonable grounds to

believe” that he should act. In this case, based on

reports of a disturbance on board the aircraft from

the cabin crew, the captain diverted a flight to the

nearest airport and disembarked respondents. The

Ninth Circuit held that a captain, in order to have

“reasonable grounds to believe” that action is appro-

priate, must independently investigate the existence

and scope of a disruption in the cabin before crediting

his flight crew’s reports to that effect.

The Ninth Circuit’s ruling effectively nullifies the

immunity provided by the Tokyo Convention. If left

standing, it will undermine the Convention’s aim of

promoting security by encouraging a captain to act

swiftly and decisively, without fear of civil liability.

As the United States warned the court of appeals, a

non-deferential “searching review of decisions made

by the captain wlill] hinder the central goal of the

broad immunity conferred by the Tokyo Convention

to encourage captains to take decisive action, often

under chaotic circumstances, to preserve the safety of

the plane and its passengers without fear of having

those actions second-guessed in the relative calm of a

courtroom.” App., infra, 126a-127a.

In addition to contravening the purpose of the

Tokyo Convention, the ruling below cannot be recon-

ciled with the decisions of two other federal courts of

appeals interpreting the domestic counterpart to the

Convention. Section 44902(b) of Title 49 grants air

carriers the right to “refuse to transport a passenger

** * the carrier decides is, or might be, inimical to

safety.” In stark contrast to the decision below, the

First and Second Circuits, as well as a multitude of

district courts across the country, review an aircraft

captain’s actions under Section 44902(b) using a

deferential “arbitrary and capricious” standard.

In adopting a non-deferential standard under the

Tokyo Convention, the Ninth Circuit’s ruling adversely

affects not only flight operations and training at peti-

tioner Alaska Airlines, but at every airline operating

either domestic or international flights throughout

the United States. This Court should grant review

and reverse that ruling.

STATEMENT

A. The Treaty

The Tokyo Convention—formally known as the

Convention on Offences and Certain Other Acts

Committed on Board Aircraft—is a multilateral

treaty that has been ratified by the United States and

184 other nations. It governs the authority and legal

liability of aircraft captains and crew members for

actions taken on board aircrafts engaged in interna-

tional aviation to prevent actions that jeopardize the

safety of the aircraft or good order and discipline.

App., infra, 97a, 99a-100a. [Art. 1(2), 5].

1. The treaty’s “major purpose” is to “promote

the safety of civil aviation.” S. Exec. Rep. No. 90-3, at

7 (1969) (statement of Deputy Legal Adviser, De-

partment of State). The Convention was developed at

a time of increasing passenger incidents threatening

international air travel safety, including a rise in

violent hijackings. See Gerald F. Fitzgerald, The De-

velopment of International Rules Concerning Offences

and Certain Other Acts on Board Aircraft, 1 Can. Y.B.

Int'l L. 230, 240-241 & n.24, 244 n.29 (1963)

One hindrance to addressing such incidents was

uncertainty about the authority of the aircraft cap-

tain. As President Johnson explained to the Senate, a

treaty governing international aviation was required

because “aircraft in international air transportation

may traverse sovereign airspace at great speeds, and

in some cases travel between national borders in a

matter of a few minutes.” S. Exec. Doc. No. 90-L, at

III (1968). The authority of the aircraft captain could

thus vary from moment to moment, depending on

where the aircraft was, creating a risk that “an

American pilot might find himself the subject of a

criminal or civil proceeding for action which he had

taken in attempting to prevent the commission of an

offense on board his aircraft.” /d. at VI.

By contrast, the Convention “provides for an

element of certainty in the powers and authority of

the aircraft commander.” /d. at III. It “establishes a

uniform test by which the actions of the commander

will be judged rather than to abandon him to the

variations of local law.” Jd. at 9 (statement of the

federal Interagency Group on International Aviation).

2. The Convention grants the captain broad

authority over persons on board the aircraft. The

captain is authorized to take “reasonable measures

including restraint” of a person when the captain

“has reasonable grounds to believe that a person has

committed, or is about to commit, on board the air-

craft” acts which, “whether or not they are [criminal]

offences, may or do jeopardize the safety of the air-

craft or of persons or property therein or which jeop-

ardize good order and discipline on board.” App.,

infra, 100a, 97a [Art. 6(1), 1(1(b))].

Likewise, the Convention authorizes a captain to

disembark any passenger “who he has reasonable

6

grounds to believe has committed, or is about to com-

mit” an act that jeopardizes the safety of the aircraft

or persons therein or that jeopardizes good order or

discipline. App., infra, 102a [Art. 8(1)]. When the

captain does so, he must “report to the authorities

** * the fact of, and the reasons for, such disem-

barkation.” App., infra, 102a [Art. 8(2)].

Further, the captain may “deliver to competent

authorities” any passenger who the captain has “rea-

sonable grounds to believe has committed on board

the aircraft an act which, in his opinion, is a serious

offense according to the penal law of the State of reg-

istration of the aircraft.” App., infra, 102a [Art. 9(1)].

To encourage compliance with terms of the Con-

vention, the Convention grants the captain, his em-

ployer, and his crew complete immunity to civil and

criminal liability. “[NJeither the aircraft commander,

any other member of the crew, any passenger, [nor]

the owner or operator of the aircraft * * * shall be

held responsible in any proceeding on account of the

treatment undergone by the person against whom the

actions were taken.” App., infra, 103a [Art. 10].

B. Factual Background

Because summary judgment was entered for peti-

tioner, the description below credits all the facts in

the record that favor respondents and with all justi-

fiable inferences drawn in their favor. See Grok v.

Ramirez, 540 U.S. 551, 552 (2004). Petitioner does

not concede the truth of this description.

Captain Swanigan was the captain of an inter-

national flight operated by petitioner that took off

from Vancouver, British Columbia, and was bound for

Las Vegas, Nevada. App., infra, 4a. The Captain had

26 years of piloting experience and was petitioner’s

former Chief Pilot. App., infra, 37a n.2 (Otero, J.,

dissenting).

About one hour into the flight, the Captain re-

ceived a call on the aircraft interphone from a flight

attendant. The flight attendant reported that she

was having trouble with some first-class passengers

and requested that security meet the airplane in Las

Vegas. (Respondents were nine of the twelve first-

class passengers and were traveling together as a

group.) The Captain asked whether there was “any-

thing urgent I need to know?” to which the flight

attendant responded that she believed she had the

situation under control. Following the conversation,

Captain Swanigan initiated cockpit lockdown proce-

dures and turned on the “fasten seatbelt” sign. App.,

infra, 39a (Otero, J., dissenting), 93a.

Several minutes later, the Captain received a

second phone call from a flight attendant, stating she

had “lost control” of the first-class cabin. To the Cap-

tain, it sounded like the flight attendant was crying.

At this time, the Captain heard “a bunch of yelling

and screaming” coming through the interphone.

The Captain confirmed with the First Officer that he

too heard yelling and screaming. The Captain had

8

“never heard anything like that in [his] entire

career.”. The Captain “felt that there was a possi-

bility that [his] airplane and [his] crew were in jeop-

ardy.” The Captain decided to put the airplane on the

ground as soon as possible, at the nearest suitable

airport: Reno, Nevada. App., znfra, 9a, 39a-40a, 64a

(Otero, J., dissenting), 93a-94a.

After the aircraft landed in Reno, the Captain

and the flight attendant met at the top of the jetway

to discuss what had happened on board. She reported

to the Captain that there were six first-class passen-

gers who were causing a disturbance during the

flight, including congregating near the cockpit door,

refusing to follow flight attendant instructions, and

yelling at the flight attendant. She also told him

that, after several verbal warnings, she gave the

passengers a written warning and they “exploded” at

that point. The flight attendant also reported to the

Captain that the passengers told her that “[YJou

‘ The panel majority believed that there was a material

dispute of fact as to whether there was screaming in the back-

ground, because some of the passengers claimed that they

stopped yelling before the flight attendant called the Captain.

App , infra, 22a-23a The dissent and the district court both

concluded that respondents had not proffered material evidence

on that point, App., infra, 40a n6 (Otero, J., dissenting), 94a,

and the evidence relied on by the panel majority is not disposi-

tive. App, infra, 7a n.5 (respondent “attempted to make herself

heard over the flight attendant’s yelling”); App., infra, 8a n.5

(“the three members of my party involved at all were simply

attempting to respond to the flight attendant”). This disagree-

ment is not material to the issues presented.

9

Americans [are] so paranoid and all of these safety

and security regulations [are] stupid.” App., infra,

10a, 41a-42a (Otero, J., dissenting), 93a.

Based on this report, Captain Swanigan asked

law enforcement to remove the passengers and to

press charges against them. Captain Swanigan had

the flight attendant return to the first-class cabin to

identify the offending passengers, all of whom de-

planed. App., infra, 10a, 42a (Otero, J., dissenting).

Law enforcement decided not to arrest any of the

respondents, who then continued to Las Vegas on a

different airline. In Las Vegas, respondents were

questioned by the Federal Bureau of Investigation,

apparently in response to petitioner’s report to the

Joint Terrorism Task Force. App., infra, 10a-11a.

C. Proceedings Below

1. Respondents sued petitioner in federal court,

claiming that petitioner had violated its obligation

under the Warsaw Convention—formally known as

the Convention for the Unification of Certain Rules

Relating to International Transportation by Air,

opened for signature Oct. 12, 1929, T.S. No. 876

(1934)—which creates a cause of action against an

airline for “damage occasioned by delay in the trans-

portation by air of passengers” on international flights

and preempts state tort law. See Olympic Airways v.

10

Husain, 540 U.S. 644, 649 & n.5 (2004).’ Petitioner

moved for summary judgment on the Warsaw Con-

vention claim, contending that the Tokyo Convention

provided it immunity to respondents’ claim.

The district court granted summary judgment for

petitioner. App., infra, 8la-95a. The court explained

that when a captain acts in accordance with the

Tokyo Convention, neither he nor the owner or opera-

tor of the aircraft may be held liable. App., in/ra,

91la-92a. The court determined that the captain had

complied with the Tokyo Convention because “[r]ea-

sonable minds, given even a cursory examination of

all the facts and circumstances of this matter, could

not differ in concluding that the Captain had reason-

able grounds for his decision.” App., infra, 95a.

2. On appeal, and after oral argument, the

court of appeals sua sponte invited the United States

to submit an amicus brief setting forth its views as to

the correct application of the Tokyo Convention and

* Respondents also brought supplemental state-law claims

for defamation and intentional infliction of emotional distress.

The district court dismissed all of respondents’ state law claims

as preempted by the Warsaw Convention. App, infra, 72a-80a.

The district court subsequently denied respondents’ motion to

file supplemental pleadings alleging seven new state causes of

action App, infra, 83a-89a. The court of appeals affirmed in

part and reversed in part the dismissal of the state law claims,

App , infra, 29a-32a, 69a-70a, and affirmed the district court’s

order refusing to permit the filing of supplemental pleadings,

App., infra, 32a-35a, 70a. Those rulings are not at issue 1n this

petition.

11

the Warsaw Convention. App., infra, 46a n.9. The

United States subsequently filed a brief urging that

the Tokyo Convention requires a highly deferential

review of an aircraft captain’s actions. The govern-

ment took no position on whether summary judgment

under the Tokyo Convention was appropriate on the

instant record. App., infra, 114a-142a.

3. As relevant here, a divided court of appeals

reversed the ruling that the Tokyo Convention en-

titled petitioner to summary judgment. App., infra,

la-71la.

Focusing on the phrase “reasonable grounds to

believe,” the panel majority held that the Tokyo Con-

vention adopts a “reasonableness” standard as that

term is used in American law, not a standard that is

deferential to the captain. App., infra, 14a. The court

concluded that “[rJeasonableness is a well-established

and easily-understood standard, one that American

courts are accustomed to applying in a wide variety of

situations involving the behavior of individuals.”

App., infra, 18a. In so doing, the panel majority

acknowledged that the First Circuit had “adopted an

‘arbitrary or capricious’ standard for judging the

behavior of airline crews” under the analogous stat-

ute for domestic air travel, 49 U.S.C. § 44902(b).

App., infra, 18a (quoting Cerquiera v. American Air-

lines, Inc., 520 F.3d 1, 12 (1st Cir.), cert. denied, 129

S. Ct. 111 (2008)). But the panel majority “decline[d]

to follow Cerquiera.” App., infra, 19a.

12

Applying its interpretation of “reasonable grounds

to believe,” the Ninth Circuit held that summary

judgment was not appropriate. The panel majority

hypothesized that a jury could conclude that a “rea-

sonable captain” should have “tried to find something

about what was going on in the cabin” after the flight

attendant reported she had “lost control of the first

class cabin,” and before making the decision to divert

to Reno. App., infra, 22a. The panel majority also

reasoned that a jury could conclude that, once the

aircraft was on the ground, Captain Swanigan should

have interviewed respondents before turning them

over to the police. App., infra, 24a-27a. Finally, the

panel majority surmised that a jury could conclude

that the Captain’s refusal to allow respondents to

reboard the flight after the police decided not to

arrest them was not reasonable. App., infra, 27a-28a.

The panel majority acknowledged that a captain

“must be able to act decisively in an emergency and,

in doing so, rely on communications from his crew.”

App., infra, 28a. But the majority held that a jury

could conclude that “there was no emergency” here.

App., infra, 28a.

4. Judge Otero dissented from the panel majori-

ty’s failure to give the captain’s decision deference. In

his view, the Tokyo Convention requires that Captain

Swanigan’s behavior be reviewed under “a more

deferential arbitrary and capricious standard” and

not a “reasonableness standard.” App., infra, 38a.

13

As the dissenting judge observed, the Convention

does not define “reasonable grounds to believe” and

“reasonable measures.” App., infra, 45a. And the

meaning of these terms is not “clear on their face.”

App., infra, 45a. Judge Otero explained that, al-

though the term “‘reasonable’ is familiar in American

law,” the “relevant text in the instant case comes from

a multilateral agreement among nations with signifi-

cant differences in both procedural and substantive

law.” App., infra, 45a-46a. Given the context in

which these terms are used and the Convention’s

“broad” provision of immunity, he concluded that

petitioner and the United States were correct that

“considerable deference should be owed” the captain.

App., infra, 47a.

The dissenting judge further noted that the his-

tory of the negotiation and drafting of the Tokyo

Convention supports a deferential standard. App.,

infra, 49a. In particular, he emphasized that the

United States’ delegate understood the Convention’s

“reasonable grounds” language as calling for an

arbitrary-and-capricious standard: “In other words,

the aircraft commander could not act arbitrarily or

capriciously.” App., infra, 50a (quoting U.S. delegate;

emphasis omitted). Judge Otero noted that, in the

majority’s discussion of this same statement, “my

colleagues curiously omit the last sentence.” App.,

infra, 5la.

The dissenting judge further observed that his

view of the Tokyo Convention was more consistent

with federal decisions interpreting the analogous

statute for domestic air travel. App., infra, 55a-58a.

14

Finally, Judge Otero reasoned that an “arbitrary

and capricious” standard “meets the principal goal of

promoting air safety as well as the goal of protecting

the rights of passengers to be free from unwarranted

discrimination. A negligence standard, on the other

hand, will result in hesitation by the pilot in circum-

stances where he should have acted fand] second-

guessing by the courts * * * .” App., infra, 6la-62a.

The dissenting judge concluded that Captain

Swanigan’s diversion of the flight to Reno was neither

arbitrary nor capricious, and was thus in compliance

with the Tokyo Convention. App., infra, 62a-67a.

“Captain Swanigan made the split-second decision

that landing the aircraft was necessary under the

circumstances, aware that any hesitation would soon

make it impracticable to make an emergency landing

in Reno. There was no affirmative obligation imposed

by the Tokyo Convention on Captain Swanigan to

conduct a personal investigation * **.” App., infra,

65a; see also App., infra, 71a.

Judge Otero concurred with the majority that

Captain Swanigan’s decision to remove respondents

‘from the aircraft after landing and delivering them to

the authorities posed a triable issue of fact. But he

would have held that the Captain’s actions should be

examined on remand under an “arbitrary or capri-

cious standard, not a reasonableness standard” as

adopted by the majority. App., infra, 68a.

15

REASONS FOR GRANTING THE PETITION

REVIEW IS NECESSARY BECAUSE THE

NINTH CIRCUIT’S READING OF THE TOKYO

CONVENTION, WHICH IS CONTRARY TO THE

UNITED STATES’ UNDERSTANDING OF THIS

TREATY, THREATENS AVIATION SECURITY

A. The Ninth Circuit’s Misinterpretation Of

The International Treaty Governing Air-

line Security Will Deter Aircraft Captains

From Taking Swift Action To Address

Actual Or Potential Security Threats

This case presents a question of fundamental

importance: whether an aircraft captain’s decision to

act to preserve safety, good order, and discipline on

board an international flight is entitled to any defer-

ence. The Ninth Circuit’s interpretation of the Tokyo

Convention will affect not only flight operations and

training at petitioner Alaska Airlines, but at every

airline operating both domestic and international

flights throughout the United States.

1. The decision below will defeat the prin-

cipal purpose of the Tokyo Convention

and chill aircraft captains from making

critical security decisions

If allowed to stand, the panel majority’s decision

will frustrate the Convention’s purpose of promoting

safety in international aviation and deter captains

from making critical, necessary security decisions.

a. “The principal purpose of the Tokyo Conven-

tion is to promote aviation safety ***.” S. Rep.

16

No. 91-1083, at 2 (1970); see also S. Exec. Rep. No. 90-

3, at 7 (1969) (statement of Deputy Legal Adviser,

Department of State) (Convention’s “major purpose”

is to “promote safety of civil aviation”); Robert P.

Boyle & Roy Pulsifer, The Tokyo Convention on

Offenses and Certain Other Acts Committed on Board

Aircraft, 30 J. Air L. & Com. 305, 321 (1964)

(the “dominant” theme of the Convention is the

“enhancement of safety”).

The Convention sought to achieve this purpose in

two ways. First, the Convention eliminated a patch-

work of national laws by granting a broad, uniform

authority to all aircraft captains. This grant of

authority “provides for an element of certainty in the

powers and authority of the aircraft commander.”

S. Exec. Doc. No. 90-L, at III (1968) (President John-

son). As the Air Transport Association explained to

the Senate in urging ratification, the Convention

“affords a useful base of recognition of the authority

of the aircraft commander to deal with offenders on

board the aircraft.” S. Exec. Rep. No. 90-3, at 33

(1969).

Second, to ensure that aircraft captains were not

deterred from using the authority granted by the

Convention, Article 10 of the Convention grants im-

munity from civil and criminal proceedings for acts

performed in accordance with the Convention. This

provision “grant[s] the aircraft commander and crew

protection from legal action brought against them be-

cause of [conduct] which might otherwise subject them

to legal liability or criminal prosecution.” /d. at 2.

17

The captain would thus be able to act “without fear of

subsequent retaliation through civil suit or other-

wise.” /d. at 10 (statement of Air Line Pilots Associa-

tion).

The immunity was intended to have “a definite

practical value to both the airline operators and their

crews.” §S. Exec. Doc. No. 90-L, at 3 (statement of

federal Interagency Group on International Aviation).

Instead of being subject to “variations of local law,”

the Convention “establishe[d] a uniform test by which

the actions of the commander will be judged.” /d.

at 9; see also S. Rep. No. 91-1083, at 2 (convention

“establishes a uniform international standard for

judging the actions of the commander’).

The President, Secretary of State, and Senate all

concluded that this immunity provision would itself

“significantly contribute to maintaining the safety of

flight in international aviation.” S. Exec. Doc. No. 90-

L, at IV (President Johnson); see id. at VI (Secretary

of State); S. Rep. No. 91-1083, at 2 (Senate). The

Senate, building on the President’s observation,

explained that “[t]his immunity should enhance the

proper attitudes and actions necessary” by the air-

craft captain and crew. S. Rep. No. 91-1083, at 2; see

also S. Exec. Doc. No. 90-L, at TV (immunity “will

create attitudes and actions”).

b. These same purposes are reflected in the

Convention’s drafting history and the views of leading

commentators. As the treaty drafters understood,

without the Convention’s immunity provision, the

18

captain “might have to hesitate and might, perhaps,

do nothing in circumstances in which he should have

acted.” Int’l Civil Aviation Org. |1[CAO], International

Conference on Air Law, Tokyo, Aug.-Sept. 1963,

Minutes, at 223, ICAO Doc. 8565-LC/152-1 (1966)

(Senegal); see also Fitzgerald, supra, 1 Can. Y.B. Int’)

L. at 247 (immunity provision included because “(t]he

aircraft commander, crew members and others would

be reluctant to act against persons prejudicing safety,

good order and discipline, if, by so acting, they were

to expose themselves to legal proceedings brought in

respect of their actions”). The chief of the United

States’ delegation explained that “the Convention

provides the aircraft commander with the necessary

authority [to act] * ** without fear of subsequent

retaliation through civil suit or otherwise.” Boyle,

supra, at 329.

The immunity granted by the Convention is all

the more important in the post-9/11 environment. In

the fall of 2001, the International Civil Aviation

Organization noted an “increase [in|] the number and

gravity of reported incidents involving unruly or dis-

ruptive passengers on board civil aircraft” and recog-

nized the “inherent risks” such incidents pose to “the

safety of the aircraft and the passengers and crew on

board these aircraft.”. ICAO, Adoption of Nattonal

Legislation on Certain Offences Committed on Board

Civil Aircraft (Unruly/Disruptive Passengers), Assemb

Res. A33-4 (2001).

c. The Ninth Circuit’s decision eviscerates the

primary purpose of the Convention. Under the panel

19

majority’s ruling, a captain’s decision is effectively

afforded no deference. Instead, his decision will be

second-guessed in the relative calm of the courtroom,

by lay jurors, with facts learned in hindsight. As the

dissenting judge recognized, “the unintended but

probable consequence” of the panel majority’s mis-

interpretation of the Tokyo Convention “is risk to

passenger and crew safety—an affront to the princi-

pal purpose of the Tokyo Convention.” App., infra,

37a.

Further, if, as held by the court below, an aircraft

captain must conduct an independent investigation

during the flight before acting, the captain cannot

make prompt decisions when confronted with poten-

tial safety or security threats. Moreover, the conduct

of the “investigation” required by the Ninth Circuit

will, during a potential emergency situation, neces-

sarily take the captain away from the primary re-

sponsibility of actually flying the aircraft. Hesitation

and indecision, when prompt action is necessary, may

lead to inaction or delay that endangers flight safety.

That result contravenes the principal purpose of the

Tokyo Convention, whose drafters “crafted a standard

that takes into account the demanding and time-

sensitive nature of an aircraft commander’s decision.”

App., infra, 59a.

20

2. The decision misinterprets the Tokyo

Convention as offering essentially no

defense for captains and airlines sued

under the Warsaw Convention

a. The Ninth Circuit effectively read the Tokyo

Convention as creating a standard coextensive with a

negligence standard. That is, it interpreted the Con-

vention’s language authorizing an aircraft captain to

act when he has “reasonable grounds to believe” a

passenger has or will engage in proscribed conduct as

requiring that the captain be “reasonable.” That

reading essentially provides no independent defense

for captains and airlines to a passenger’s claim under

the Warsaw Convention. At the time the Tokyo

Convention was drafted and ratified, the Warsaw

Convention already contained a \lack-of-negligence

defense to its strict liability regime. See Olympic

Airways v. Husain, 540 U.S. 644, 649 n.5 (2004).

Moreover, that reading deprives captains of the

certainty that the Tokyo Convention intended to

establish. In so doing, it renders a virtual nullity

what the Senate described as a “significant step in

the development of international aviation law.”

S. Exec. Rep. No. 90-3, at 3 (1969). And it does soina

way that essentially precludes resolution by sum-

mary judgment, thus causing captains and airlines to

experience the burdens of full-blown trial litigation.

b. A “neghigence”-type standard also runs con-

trary to the language of the Tokyo Convention, which

uses words of breadth and discretion to describe the

21

captain’s authority. For example, the Convention

does not limit the aircraft captain’s authority to

passenger actions that jeopardize safety. Instead, it

empowers the captain to address passenger actions

“which, whether or not they are [criminal] offences,

may or do jeopardize the safety of the aircraft.” App.,

infra, 97a [Art. 1(1(b))] (emphasis added). The Con-

vention allows the captain to act when he reasonably

believes “that a person has committed, or is about to

commit, on board the aircraft” such actions. App.,

infra, 100a [Art. 6(1)] (emphasis added). Thus, on its

face, the Convention gives a captain discretion to act

upon limited information regarding nascent threats,

rather than requiring the captain to wait for an

“emergency” to materialize. Cf App., infra, 28a.

A passenger need not actually commit an act—let

alone an act which definitively endangers safety (or

good order and discipline) on board—before the

captain can take reasonable measures to avoid a

potential problem.

Further, while the Convention grants the aircraft

captain broad authority, the captain is not expected to

serve as a detective and to engage in an on-board

investigation while flying the aircraft. To the con-

trary, once the aircraft doors open, see App., infra,

99a-100a [Art. 5(2)], the Convention contemplates

that the captain will involve the competent authori-

ties to investigate the disturbance. App., infra, 100a,

102a-103a [Art. 6(1(c)), 9] (captain may deliver prob-

lem passenger to “competent authorities”); App.,

infra, at 102a [Art. 8(2)} (captain “shall report” to the

22

authorities “the facts of, and the reasons for,” the

passenger disembarkation). The Convention contem-

plates that the ultimate decision whether to arrest or

to detain a passenger shall be made by the local au-

thorities on the ground, without the risks attendant

in air travel. Jd. at 105a [Art. 13(4)] (contracting

nation taking custody of delivered passenger “shall

immediately make a preliminary enquiry into the

facts”).

c. The panel majority’s reading of the “reasona-

ble grounds to believe” language in the Tokyo Con-

vention is directly contrary to the intent of the Con-

vention’s drafters. The drafters recognized the need

to confer “extraordinary powers” on the captain be-

cause of the unique risks involved in air travel and

the “special position” in which the captain is placed.

ICAO, Minutes at 166 (United States). As the United

States’ chief delegate explained: “The doors [are]

closed and he [does] not have the local police force

immediately available. Hence, if a passenger en-

dangered the life or safety of another passenger or

threatened the safety of the aircraft, the aircraft

commander and his crew should be authorized to take

whatever immediate action [i]s necessary.” Ibid.

Further, the Convention’s drafters repeatedly

rejected proposals to impose limits on the captain’s

authority. For example, the drafters rejected a pro-

posal that the captain should have “serious grounds”

rather than “reasonable grounds” before taking

action. Jd. at 155. They similarly declined to adopt a

standard that would require “some concrete external

23

facts” to support a reasonable belief, reasoning that

such a standard would be too “strict and rigid.” Id. at

178-179 (Netherlands).

d. The only other court to address the Tokyo

Convention rejected the “negligence-esque standard”

adopted by the panel majority. App., infra, 53a

(Otero, J., dissenting). In Zikry v. Air Canada, Civil

File No. 1716/05 A (2006), the Israeli Magistrates

Court of Haifa recognized that the Tokyo Convention

confers “extensive and wide authority” upon the cap-

tain. It further concluded that “facts are not to be

examined by hindsight, but at the time of the actual

event.” The Israeli court also emphasized that the

captain could have a “reasonable fear,” “even if post

factum it was a false apprehension.”

The substantial deference given by the Israeli

court to the captain’s decision to disembark the

passenger in that case (who was suspected of smoking

in the lavatory) stands in stark contrast to the lack of

deference given by the Ninth Circuit to the captain’s

decision to disembark the passengers here (who

reportedly had caused the flight attendant to lose

contro! of the first-class cabin). The Ninth Circuit’s

departure from the reasoning and result of the Israeli

court underscores the need for this Court’s review.

24

B. The Ninth Circuit’s Interpretation Of The

Tokyo Convention Is Contrary To The

Views Of The United States, Which Should

Have Been Accorded Great Weight

“It is well settled that the Executive Branch’s

interpretation of a treaty is entitled to great weight.”

Abbott v. Abbott, 130 S. Ct. 1983, 1993 (2010) (inter-

nal quotation marks and citation omitted)). The

Ninth Circuit sua sponte requested the United States

to submit an amicus curiae brief regarding the proper

interpretation of the Convention. App., infra, 46a

n.9. The United States obliged (App., infra, 114a-

142a), only to have the panel majority ignore its

views. Although the majority panel did not mention

the United States’ views when it addressed the Tokyo

Convention, its opinion rejects in full the United

States’ interpretation.

1. The United States urged that “review of

actions taken by a captain pursuant to the Tokyo

Convention must be highly deferential” in light of the

“breadth of discretion afforded the aircraft captain

and the purpose of the Convention’s grant of immu-

nity.” App., infra, 122a (emphasis added); see also

App., infra, 121a, 125a (advocating “expansive” and

“broad discretion”).

The United States explained the practical need

for the captain to be given “wide discretion.” “Threats

to airplane security require captains and crew mem-

bers to act without hesitation where potential prob-

lems arise, and to err on the side of caution by

25

eliminating possible threats before they have an op-

portunity to materialize.” Jd. at 128a. That practical

need applies while the aircraft is on the ground as

well. “Although decisions made on the ground may

present less risk of immediate physical danger, the

complicated and coordinated nature of airline flight

schedules nonetheless makes prompt action neces-

sary.” App., infra, 128a.

2. The panel majority also rejected the United

States’ view that, under the Convention, the aircraft

captain does not have a duty to conduct an “inde-

pendent investigation” before diverting the flight.

The United States explained that “FAA regulations

make it difficult, if not impossible, for a captain to

personally investigate potential disturbances in the

passenger cabin.” App., imfra, 13la. That is because

the “cockpit doors [must] be closed and locked at all

times the aircraft is operating” and “crew members in

the cockpit must remain in their seats with seatbelts

fastened except in limited circumstances.” App.,

infra, 13la. Indeed, “[iJn the event of a disturbance,

pilots are to remain in the closed cockpit, and cannot

leave the cabin to assist crew members.” App., infra,

13la. The United States thus concluded that the

“pilot must therefore be able to rely on the reports of

the cabin crew, and keep his attention focused on

flying the plane.” App., infra, 131la (emphasis added).

Moreover, the panel majority disregarded the

United States’ view that the contemporaneous under-

standing of the phrase “reasonable grounds to be-

lieve” in certain federal statutes confirmed that the

26

Convention’s similar language required a deferential

standard. For example, the United States pointed to

a federal statute authorizing warrantless arrests

when there were “reasonable grounds to believe” a

violation of federal narcotics laws had occurred or

was occurring. This Court held that, under that

“reasonable grounds” standard, information from a

reliable informant was sufficient. App., infra, 130a

(citing Draper v. United States, 358 U.S. 307, 310

(1959)). Indeed, the United States asserted that

a “significantly more deferential” standard should

apply to review of a captain’s decision under the

Tokyo Convention. App., infra, 130a.

3. The United States warned that “engaging in

searching review of decisions made by the captain

would hinder the central goal of the broad immunity

conferred by the Tokyo Convention—to encourage

captains to take decisive action, often under chaotic

circumstances, to preserve the safety of the plane and

its passengers without fear of having those actions

second-guessed in the relative calm of a courtroom.”

App., infra, 126a-127a.

Far from giving the United States’ views their

requisite “great weight,” the panel majority ignored

them. The Ninth Circuit’s adoption of a contrary

standard warrants this Court’s review.

27

C. The Ninth Circuit’s Decision Conflicts With

Interpretations By Other Federal Courts

Of The Domestic Counterpart To The

Tokyo Convention

While the Tokyo Convention governs the cap-

tain’s authority on international flights, Section

44902(b) of Title 49 governs domestic flights in the

United States. Section 44902(b) grants air carriers

the right to “refuse to transport a passenger * * * the

carrier decides is, or might be, inimical to safety.” In

applying that analogous domestic provision, the First

and Second Circuits, as well as a legion of district

courts, apply a deferential standard akin to what the

United States advocated in its amicus brief. The

Ninth Circuit’s decision failing to apply a deferential

standard under the Tokyo Convention cannot be

squared with those decisions.

1. Like the Tokyo Convention, Section 44902(b)

was enacted in the 1960s, in the era of increased

hijackings of passenger planes. See Williams v. Trans

World Airlines, 509 F.2d 942, 946 (2d Cir. 1975).°

Section 44902(b) was enacted “in furtherance of the

first priority of safety in air traffic.” Cerquiera uv.

American Airlines, Inc., 520 F.8d 1, 12 (1st Cir.)

(citing 49 U.S.C. § 40101(a)(1)), cert. denied, 129

S. Ct. 111 (2008).

> Section 44902 was first enacted two years before the

United States’ signing of the Tokyo Convention See Pub. L No.

87-197, § 4, 75 Stat. 466 (1961)

28

Federal courts have long held that Section

44902(b) bars civil liability against the airline as long

as the decision to refuse transport is not “arbitrary or

capricious.” Cerquiera, 520 F.3d at 14; Williams, 509

F.2d at 948; Hammond v. Northwest Atrlines, No.

09-12331, 2010 WL 2836899, at *4 (E.D. Mich. July

19, 2010); Al-Watan v. American Airlines, Inc., 658

F. Supp. 2d 816, 822 (E.D. Mich. 2009); Dasrath uv.

Continental Airlines, Inc., 467 F. Supp. 2d 431, 443-

444 (D.N.J. 2006); Ruta v. Delta Airlines, Inc., 322

F. Supp. 2d 391, 397 (S.D.N.Y. 2004); Al-Qudhai’een v.

America West Airlines, Inc., 267 F.Supp. 2d 841,

846 (S.D. Ohio 2003); Christel v. AMR Corp., 222

F. Supp. 2d 335, 340-341 (E.D.N.Y. 2002); Zervigon v.

Piedmont Aviation, Inc., 558 F. Supp. 1305, 1806 &

n.7 (S.D.N.Y. 1983).

The Ninth Circuit agreed that the case law in-

terpreting Section 44902(b) was a useful analogy in

interpreting the Tokyo Convention, but expressly

declined to follow Cerquiera and its deferential “arbi-

trary and capricious” standard. App., infra, 19a."

* Before the decision in this case, other courts had under-

stood the Ninth Circuit’s decision in Cordero v. Cia Mexicana De

Aviacion, S A , 681 F 2d 669, 672 (9th Cir. 1982), as adopting an

arbitrary and capricious standard. See, e.g., Cerquiera, 520 F 3d

at 14; Al-Watan, 658 F. Supp 2d at 824; Zervigon, 558 F. Supp.

at 1306 & n.7.

Indeed, that is the most natural reading of Cordero. In

Cordero, the Ninth Circuit explicitly approved the application of

an “arbitrary and capricious” standard, 681 F.2d at 671 n.2, and

explained that the statute only permits litigation regarding

(Continued on following page)

29

2. In adopting a deferential standard rejected

by the Ninth Circuit here, the First Circuit in

Cerquiera explained that Section 44902(b)’s plain

language vests “very broad” discretion over the air

carrier’s decision to refuse transport. 520 F.3d at 12.

The First Circuit noted that the statute provides that

the air carrier “may” refuse transport and does not

require the carrier to decide that the passenger “is”

inimical to safety—that the passenger “might be”

inimical to safety is sufficient grounds for refusal.

Ibid.

The First Circuit reasoned that, under the defer-

ential arbitrary and capricious standard, review of

the captain’s decision must be “restricted to what

information was actually known at the time of the

decision. The test is not what the Captain reasonably

should have known.” Id. at 14-15. Moreover, because

decisions to refuse transport “must be made in an

expedient manner, and it is the Captain who bears

the ultimate responsibility of ensuring the safety of

the aircraft, there is no obligation on the part of the

refusal to transport a passenger to proceed if the pilot’s beliefs

were “unreasonably or irrationally formed.” Jd. at 671 Cordero

recognized that “air carners often must make decisions within

moments of take-off and with less than perfect knowledge,” and

that the “reasonableness of the carrier’s opinion, therefore, is to

be tested on the information available to the airline at the

moment a decision is required.” Jd. at 672. As Cordero rea-

soned, “[t]here 1s correspondingly no duty to conduct an in-depth

investigation into a_ ticket-holder’s potentially dangerous

proclivities ” Ibid.

30

Captain * * * to make a thorough inquiry into the

information received, the sources of that information,

or to engage in an investigation.” /d. at 15 (citing

Cordero, 681 F.2d at 672). Rather, “(t]he Captain (or

other decisionmaker) is entitled to accept at face

value the representations made to him by other air

carrier employees.” J[bid. (citing Cordero, 681 F.2d at

672 and Williams, 509 F.2d at 948).

In Williams, the Second Circuit had earlier ex-

plained the need for a deferential standard of review

under the predecessor to Section 44902(b). The court

reasoned that this statute “expressly leaves the

ascertainment of the necessity for denying passage to

** * ‘the opinion of the air carrier * * * .”” Williams,

509 F.2d at 948. Moreover, in drafting Section

44902(b), “Congress was certainly aware that deci-

sions under [the statute] would in many instances

probably have to be made within minutes of the

plane’s scheduled take-off time, and that the carrier’s

formulation of opinion would have to rest on some-

thing less than absolute certainty.” Jbid. Thus, the

test of whether the airline properly exercised its

power under the statute “rests upon the facts and

circumstances of the case as known to the airline at

the time it formed its opinion and made its decision

and whether or not the opinion and decision were

rational and reasonable and not capricious or arbi-

trary in the light of those facts and circumstances.

They are not to be tested by other facts later disclosed

by hindsight.” Ibid.

3]

3. Numerous district courts likewise have ap-

plied a deferential] “arbitrary and capricious” stan-

dard to decisions made under Section 44902(b). Those

courts have reasoned that that level of deference is

necessary to avoid deterring captains from taking

steps appropriate to protect aircraft safety.

For example, in Zervigon, the district court

reasoned that “(t]he fact that the safety and well

being of many lives are dependent upon his judgment

necessarily means that the captain is vested with

wide discretion” under the statute. 558 F. Supp. at

1306 (emphasis added). The court cautioned that a

captain’s inaction may “subject||] the flight and

passengers to grave danger”—thus, a captain should

not have to “tempt fate” so that the prospect of a

hijacking or other disturbance becomes a reality. Jd.

at 1307-1308.

In Al-Qudhaveen, likewise, the court held that it

need only assess what was known to the captain at

the time, and need “not to look beyond the flight

attendant’s representations.” 267 F. Supp. 2d at 847

n.4. The court explained that a captain is entitled to

rely upon a flight attendants’ representations; even if

the flight attendant made “exaggerated or even false

representations to the Captain, the Captain did not

have an obligation to leave the cockpit and investi-

gate the truthfulness” of the flight attendant’s state-

ments. Jbid. (quoting Christel, 222 F.Supp. 2d at

340); see also Ruta, 322 F. Supp. 2d at 397 (same). In

contrast, the decision below criticizes, rather than

32

respects, the captain’s reliance on his flight atten-

dant’s reports.

These conflicting interpretations of the Tokyo

Convention and Section 44902(b) are detrimental to

the aviation industry. It is crucial for airlines and

aircraft captains to be able to rely on a uniform

federal and international standard that will be used

to judge their actions in response to potential threats

to aircraft and persons on board. A captain should

not have less discretion to act to confront a safety-of-

flight issue in the air between California and Nevada,

or between British Columbia and Nevada, than on a

flight between New York and Washington D.C. And a

captain’s ability to rely on his crewmembers should

not depend on his place of departure or destination.

Yet, if the decision below is left standing, that will be

the inevitable and untoward result.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

DON G. RUSHING DEANNE EF. MAYNARD

WILLIAM V. O'CONNOR Counsel of Record

ELLEN N. ADLER SETH M. GALANTER

MORRISON & FOERSTER LLP = MORRISON & FOERSTER LLP

12531 High Bluff Drive 2000 Pennsylvania Ave., N.W.

Suite 100 Washington, D.C. 20006

San Diego, CA 92130 (202) 887-8740

dmaynard@mofo.com

Counsel for Petitioner

la

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AZZA EID; AMRE R. GINENA;

NAHID I. GINENA; REDA A.

GINENA; SABRINA KOBERT;

M. SAMIR MANSOUR; NAZMI M. _

; No. 06-1642

NAZMI; M. Maapy H. RASIKH; >

HepBa Naz I, D.C. No.

1V-04-01 -RCJ

Plaintiffs-Appellants, . _

OPINION

V.

ALASKA AIRLINES, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, District Judge, Presiding

Argued and Submitted

April 18, 2008 — San Francisco, California

Submission Vacated April 23, 2008

Resubmitted July 30, 2010

Filed July 30, 2010

2a

Before: Alex Kozinski, Chief Judge, N. Randy Smith,

Circuit Judge and S. James Otero, District Judge.*

Opinion by Chief Judge Kozinski;

Partial Concurrence and

Partial Dissent by Judge Otero

COUNSEL

Gilbert Gaynor (argued), Santa Barbara, California,

John F. McHugh, New York, New York, and Allen

Lichtenstein, Las Vegas, Nevada, for the plaintiffs-

appellants.

Beth S. Brinkman (argued) and Seth M. Galanter,

Morrison & Foerster, LLP, Washington, D.C., Carrie

McCrea Hanlon, Pyatt Silverstri & Hanlon, Las

Vegas, Nevada, and Don G. Rushing, William V.

O’Connor and Ellen Nudelman, Morrison & Foerster

LLP, San Diego, California, for the defendant-

appellee.

Stephen B. Mashney, Mashney Law Offices, Ana-

heim, California, for amicus curiae American-Arab

Anti-Discrimination Committee.

Jonathan A. Cohen and James W. Johnson, Air Line

Pilots Association, International, Herndon, Virginia,

for amicus curiae Air Line Pilots Association, Inter-

national.

* The Honorable S James Otero, Umited States District

Judge for the Central District of California, sitting by designa-

tion.

3a

Robert McGeorge and Poolust N Udai Fulena, Inter-

national Air Transport Association, Washington,

D.C., and Andrew J. Harakas, Diane W. Wilson and

Barry S. Alexander, Clyde & Co. US LLP, New York,

New York, for amicus curiae International Air

Transport Association.

David A. Berg and Katherine Andrus, Air Transport

Association of America, Inc., Washington, D.C., and

Constance O’Keefe, Squire, Sanders & Dempsey LLP,

Washington, D.C., for amicus curiae Air Transport

Association of America, Inc.

Gregory G. Katsas, Michael S. Raab and Sarang Vijay

Damle, U.S. Department of Justice, Washington,

D.C., for amicus curiae United States of America.

Tarik S. Adlai, Law Offices of Tarik S. Adlai, Pasade-

na, California, for amicus curiae Arab Republic of

Egypt.

OPINION

KOZINSKI, Chief Judge:

We consider when airlines may be held liable to

passengers on international flights whom they force

to disembark before the voyage is completed.

Facts

These are the facts as plaintiffs allege them: On

September 29, 2003, a group of Egyptian business-

men, their wives and a Brazilian fiancée, boarded

4a

Alaska Airlines Fight 694 in Vancouver, British

Columbia. Their journey had started a few days

earlier in Cairo and they were headed for a conven-

tion on energy-related products and services in Las

Vegas. The Egyptians were interested in becoming

distributors of natural gas equipment manufactured

by a Texas company and, to that end, had scheduled a

meeting with officials of that company who were

attending the convention.

The nine plaintiffs took up all but three of the

first class seats on Flight 694. A tenth passenger was

Kimberlie Shealy, an American; she sat next to

plaintiff Magdy Rasikh, whom she described as “[a]n

Egyptian gentleman” with whom she “was having a

pleasant conversation.” Shealy Declaration at q 2, 5.

According to Shealy, who provides the only independ-

ent account of the incident, the flight attendants

treated the Egyptians badly. It started “[elarly in the

flight” when Shealy “heard some comment by the

young man in row one [plaintiff Amre Ginena] about

coach passengers using the first class bathroom to a

young blonde flight attendant [apparently Dalee

Callaway]. She said something in response but I

could see by her face that she did not like the ques-

tion. I was surprised by her obvious reaction. .. .” Jd.

at q 4.

About an hour into the flight, Reda Ginena, who

was in the front row with his wife and son, stood up

to stretch. Shortly thereafter, a second flight at-

tendant, Lee Anne Maykuth, asked him to sit because

standing was not permitted right outside the cockpit.

5a

Ginena, who was in his 60s, explained that he needed

to stretch periodically because back and circulation

problems made protracted sitting extremely painful.

Maykuth said he could stand at the rear of the first

class cabin, near the partition between first class and

coach.

Ginena moved to that location, but soon after the

third flight attendant, Robin Duus, came up from

coach and ordered Ginena to sit down, using what

Shealy described as “an unpleasant loud voice.”

Shealy Declaration at 7 6. According to Shealy, “[ilt

was obvious from body language that |[Duus]... was

not in a good mood from the beginning of the flight.”

Id. at 4 5. “(Slhe had been glaring at [the Egyptian]

group every time she passed through the first class

cabin. She wasn’t looking at me like that.” Jd. at 7 6.

Duus claims that at the beginning of the flight Reda

Ginena made “a put down to [my] intelligence and my

rol] [sic] as an authority figure” by asking a scientific

question. Duus refused to answer Ginena’s question

because it “wasn’t really pertinent to anything. It was

just an interruption.” Duus might also have been

upset because, immediately before the flight, the

airline had given her a Notice of Discipline or Dis-

charge.

‘ As Ginena describes it. “Suddenly another flight at-

tendant was speaking to me and very harshly told me to sit

down immediately She said that I had been asked to sit by her

colleague and I had ignored her I replied that her colleague had

indeed told me that I could stand at that location. She again

ordered me to sit down in a loud firm voice.” Ginena Declaration

at 7 11.

6a

After Duus asked him to sit, Ginena immediately

took his seat but Duus continued to hector him: “She

wanted to reiterate the fact that he was not supposed

to be in the aisle ” Shealy Declaration at 7 7. Ginena

responded, “I am sitting down,” and Duus “then gave

them a piece of paper and insisted that they fill it out.

The older gentleman [Ginena] looked shocked.” Id.

The form in question was a Customer Inflight Dis-

turbance Report; it was designed to be filled out by

flight crew, not passengers.” Ginena’s son asked what

the form was. According to Ginena, “[Duus] yelled at

{my son] to ‘zip it up, end of discussion’... .” Ginena

Declaration at { 13.

Ginena the elder eventually figured out that the

form was actually supposed to be filled out by Duus,

and tried to tell her so.* In response, Duus “went

* Ginena recalls “As I walked she was behind me and was

still talking at me. I do not remember what she was saying but

her tone was nasty.” Ginena Declaration at { 11.

* Alaska Aurlines’s Flight Attendant Manual calls for

notification of the captain and his concurrence before a wntten

notification may be given to a passenger The flight attendants

on Flight 694 did not do this, handing out the forms on their own.

The manual also explains that only the bottom part of the form,

which consists of a pre-printed notice, 1s to be given to the pas-

sengers The top portion — the one with all the blanks for names,

times, witnesses, etc. — is to be retained by the flight attendant

and filled out by the crew. There 1s nothing in the manual or

elsewhere that requires passengers to fill out anything.

* This is Ginena’s account

By that time I had reviewed the form It had no place

for a passenger’s statement or signature. It 1s to be

filled out by the flight attendant and the captain, not

(Continued on following page)

7a

ballistic and began pacing between the first row and

the galley and yelling. She was completely irrational,

{Ginena] and his son could not get a word in.” Shealy

Declaration at { 7. Shealy also reports that, “[e]ven at

the height of the argument the people in row one

were respectful to the flight attendant to the extent

that they could be under the circumstances.” Id. at

by a passenger I[ told [Duus] that I was not to fill out

or sign that form. At that she began to yell at me. She

told me that I was in violation of federal law and

would go to jail. She became absolutely irrational and

I sumply could not follow what she was saying. She

was literally screaming at me. My wife then told her

that she could not talk to passengers that way and

that we could not understand what she was trying to

tell us when she was screaming. The flight attendant

screamed at my wife pointing her finger at her telling

her “I will show you what I can do to you” or words to

that effect. The flight attendant walked to the galley

and immediately came back and presented my wife

with the same form, shouting that she also fill it out

and sign it, adding that she will see to 1t that we all go

to jail She then walked a few feet to the bulkhead by

the exit door and picked up a phone which was there.

She hterally screamed into the phone that she had

lost control of the first class cabin and that the aur-

craft had to be landed immediately

Ginena Declaration at 7 14

* Plaintiffs fully corroborate this observation Ginena

explained

At all times while the flight attendant was yelling

no one else was yelling or speaking as loud. Indeed,

only my wife even attempted to make herself heard

over the flight attendant’s yelling but she gave up

quickly I gave up when she began to yell as it was

clear to me that she was irrational and that effective

(Continued on following page)

8a

4 15. She “saw no sign that any person in the first

class section was drunk, nor did [she] observe any

misconduct of any kind” on the part of the passen-

gers. Id. at { 3. According to Shealy, the Egyptian

passengers “were being accused of something that

they clearly did not understand and were being

humiliated before the entire aircraft as the flight

attendant [Duus] was yelling at the top of her lungs.”

Id. at Y 8.

communication was impossible. My son also said

nothing to Ms. Duus after telling me not to sign any-

thing 1mmediately after receiving his own copy of the

customer disturbance form.

Ginena Declaration at J 16 Same for M. Samir Mansour

Sometime later I awoke to shouting It turned out to

be a flight attendant who was on a phone standing by

the door of the galley ahead of the first class section.

She was telling someone on the other end of the phone

line to land the aircraft as she had lost control of the

first class cabin I could see the entire first class cabin

as I was in row three of the three-row section Every-

one was sitting and no one but the flight attendant

was speaking.

Mansour Declaration at | 6. And Magdy Rasikh

As my seat-mate, a young lady from Las Vegas who

was unknown to me prior to that flight, says in her

declaration, the three members of my party involved

at all were simply attempting to respond to the flight

attendant who, according to Ms Shealy, was “going

ballistic” and was acting in a completely irrational

manner. I am unfamiliar with the term “going bal-

hstic,” but the flight attendant was yelling and irra-

tional.

Rasikh Declaration at { 12.

9a

Mrs. Ginena then told Duus that she couldn’t

treat passengers this way, to which Duus responded

“IT will show you what I can do to you” and thrust

another form into her hands. Ginena Declaration at

{ 14. Soon afterwards, according to Shealy, “the flight

attendant [Duus] said ‘that’s it ’'m taking this plane

down[.’] All discussion and loud voices stopped. She

went and got a phone and was standing for a second

in the middle of the aisle by the galley,” and soon

thereafter the plane started “a quick descent.” Shealy

Declaration at {{ 9-10.

When Duus called the cockpit, she announced

that she had “lost control of the first-class cabin.”

Swanigan Deposition at 96.° Captain Michel

Swanigan and First Officer James Roberts asked no

questions; neither looked through the cockpit window

to see what was going on in the cabin. Instead,

Swanigan immediately diverted the plane to Reno,

where local police and TSA officials were waiting at

the gate. The Reno-Tahoe Airport police then came

onto the aircraft and the passengers were disem-

barked.

Plaintiffs, Swanigan and the flight attendants

gave written statements to the police. Plaintiffs

protested their innocence but the crew wanted to

have plaintiffs arrested. Captain Swanigan was

* There 1s a dispute as to which flight attendant called the

cockpit, with the passengers (including Shealy) saying it was

Duus, and the airline crew insisting 1t was Callaway

10a

adamant that plaintiffs be taken to jail: “I said [to

Flight Attendant Callaway], I want them off the

airplane. I want them arrested. ... One of [the police

officers] said, If you want to press charges, you are

going to have to file a report. I said, No problem; [ll

do it.” Swanigan Deposition at 116-20.’

Nevertheless, the police and TSA quickly cleared

plaintiffs to continue flying. They then asked

Swanigan to let them reboard Flight 694 to its desti-

nation but Swanigan declined, giving as the reason

that “his flight attendant would not allow it.” Rasikh

Declaration at ¥ 15. So, with the help of TSA and

local police, plaintiffs booked seats on America West.

They were allowed to board this flight even though

Alaska contacted America West and urged that

plaintiffs be denied passage.

After Flight 694 took off, leaving plaintiffs be-

hind, a flight attendant announced to the remaining

passengers that plaintiffs had interfered with the

flight crew and were responsible for the diversion.

Following the incident, Alaska issued this statement:

“I know many of us feel that we were let down be-

cause these people were not arrested and also puzzled

and dismayed by the ability these same passengers

had as they proceeded to another airline, bought

" The police report confirms this: “SWANIGAN stated that

he wanted the involved passengers deplaned and charged with

Interfering with a flight crew” Reno/Tahoe Airport Police

Report

lla

tickets and flew to their original destination. Just in

case you are wondering, we did inform the other

airline of these people and the incident. One has to

question if the system really works.” Alaska Airlines

Chief Pilot’s Newsletter, Oct. 2, 2003. Alaska also

reported all nine plaintiffs to the Joint Terrorism

Task Force.

Plaintiffs suffered serious consequences. Because

they had to take a later flight, they missed their

scheduled meeting with the manufacturer of natural

gas equipment that they had hoped to distribute in

Egypt. The meeting was rescheduled but, on the

afternoon of the meeting, plaintiffs were collared by

the FBI (responding, apparently, to Alaska’s Joint

Terrorism Task Force report). Plaintiffs were

marched under guard through the public areas of

their hotel and questioned at length; they were

interrogated about their Muslim faith, mosque affilia-

tions, employment histories and the incident on

Alaska Airlines. See Ginena Declaration at J 34. Mug

shots were taken before plaintiffs were released. See

Mansour Declaration at { 17. As a consequence, they

were two hours late for the rescheduled meeting with

the Texas manufacturer, and the hoped-for deal was

never consummated. See Rasikh Declaration at

q{ 29-31. Word of the incident made its way back to

Egypt, where a U.S. State Department official men-

tioned it to one of the plaintiffs. Jd. at J 32.

12a

Proceedings Below

Plaintiffs sued Alaska Airlines alleging damages

due to delay under Article 19 of the Convention for

the Unification of Certain Rules Relating to Interna-

tional Carriage by Air, Oct. 12, 1929, 49 Stat. 3000

(“Warsaw Convention”), and a variety of state-law

defamation and intentional infliction of emotional

distress claims.

The district court eventually granted Alaska’s

motion to dismiss plaintiffs’ state-law claims as

preempted by the Warsaw Convention. Plaintiffs

sought leave to file a supplemental complaint under

Fed. R. Civ. P. 15(d), alleging seven new defamation

claims based on evidence they obtained during dis-

covery. At about the same time, Alaska filed for

summary judgment on plaintiffs’ Warsaw Convention

claim.

The district court denied plaintiffs leave to file a

supplemental complaint, holding both that the mo-

tion was improperly brought under Rule 15(d) and

that the statute of limitations on their new defa-

mation claims had expired. The district court also

granted Alaska’s motion for summary judgment on

the Warsaw Convention claim on the ground that the

airline was entitled to immunity under the Conven-

tion on Offenses and Certain Other Acts Committed

on Board Aircraft, Sept. 14, 1963, 20 U.S.T. 2941, 704

U.N.T.S. 219 (“Tokyo Convention”).

l3a

Analysis

I. Original Complaint

A. Warsaw and Tokyo Conventions

In the absence of statute, common carriers such

as airlines have the duty “to secure the utmost care

and diligence in the performance of their duties,”

which means “in regard to passengers, . .. the highest

degree of carefulness and diligence.” Liverpool &

G.W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 440

(1889); see also Andrews v. United Airlines, Inc., 24

F.3d 39, 40 (9th Cir. 1994) (explaining that under

California law, airlines are “responsible for any, even

the slightest, negligence and [are] required to do all

that human care, vigilance, and foresight reasonably

can do under all the circumstances” (quotation omit-

ted)). When it comes to ejecting passengers from

flights, that duty has been modified by federal law. In

the case of domestic flights, 49 U.S.C. § 44902(b)

grants air carriers immunity if they act reasonably in

excluding passengers from a flight. See Newman v.

Am. Airlines, Inc., 176 F.3d 1128 (9th Cir. 1999);

Cordero v. Cia Mexicana De Aviacion, S.A., 681 F.2d

669 (9th Cir. 1982).

As to international flights, the common law rule

is abrogated by treaty. Any claim by a passenger

based on an airline’s conduct during flight, or during

the process of boarding or leaving an airplane (em-

barkation or disembarkation), is limited to three

kinds of damages: for bodily injury, for mishandled

luggage and for delay; and the maximum amount

l4da

awarded may not exceed $75,000. See, e.g., Day ¢

Trans World Airlines, Inc., 528 F.2d 31, 32-33 (2d Cir.

1975) (explaining the Warsaw Convention’s basic

provisions). Liability is further limited when a pas-

senger’s claim results from actions taken by the pilot

or crew to preserve order and safety on board. The

Tokyo Convention authorizes pilots to deplane pas-

sengers, deliver passengers to law enforcement and

forcibly restrain passengers during flight; the airline

is immune from any hability if the pilot has “reason-

able grounds” to support his actions. As far as we’re

aware, this is the first case in the United States, and

the second reported opinion anywhere, to interpret

the Tokyo Convention, the first being the Zikry case

from Israel, which we discuss at length below. See pp.

10972-73, 10975 infra.

1. Standard of Care. Alaska and its support

ing amici, the Air Transport Association of America

and the International Air Transport Association,

argue that the airline should not be held liable for its

treatment of passengers under the Tokyo Convention

unless Captain Swanigan acted in an arbitrary and

capricious manner. But the treaty and its drafting

history say nothing about “arbitrary and capricious.”

The standard the treaty adopts is reasonableness.

Article 8 of the Tokyo Convention empowers the

captain to disembark anyone “who|m|] he has reason-

able grounds to believe has committed” an act which

“yeopardizels] good order and discipline on board.”

Article 9 empowers a captain to turn passengers over

to the police if he has “reasonable grounds to believe”

15a

that they have committed a “serious offence according

to the penal law of the State of registration of the

aircraft.”

“It is well settled that the ‘[iJnterpretation of [a

treaty]... must, of course, begin with the language of

the Treaty itself.’” Medellin v. Texas, 552 U.S. 491,

518-19 (2008) (quotation and citation omitted) (alter-

ations tn original). The treaty here clearly provides

immunity to the airline only if the pilot has “reason-

able grounds” to support his actions. “[WJhere the

text is clear, as it is here, we have no power to insert

an amendment.” Chan v. Korean Air Lines, Ltd., 490

U.S. 122, 134 (1989).

“Because a treaty ratified by the United States is

an agreement among sovereign powers, we have also

considered as aids to its interpretation the negotia-

tion and drafting history of the treaty... .” Medellin,

552 U.S. at 507 (quotation omitted). Here, the draft-

ing history is entirely consistent with the treaty’s

plain language. The American delegate to the Tokyo

Convention wanted reasonableness to be the stan-

dard because it is a familiar term for American

judges and juries. When another delegate moved to

replace the phrase “reasonabie grounds” with “serious

grounds,” our delegate objected: “At least in the

United States legal system, the phrase ‘serious

grounds’ had no significant legal meaning, while, on the

other hand, the phrase ‘reasonable grounds’ had a

substantial legal significance.” International Conference

on Air Law, Vol. 1 (“Minutes”), Doc. 8565-LC.152-1

(1966) at 155. Our delegate went on to explain that:

16a

Within the general concept of United States

law, the phrase “reasonable grounds” would

give the impression that the aircraft com-

mander would be required to have a substan-

tial basis for his belief, that he could not act

on the basis of facts which were inadequate

to support his belief to the effect that a per-

son had committed or was about to commit

the kind of act under consideration.

Id.

Delegates from other nations expressed similar

sentiments. The Dutch delegate, for example, said

“there had always been an attempt to keep in sight

two objectives: Firstly, the safety of civil aviation,

and, secondly, the guarantees for individual freedom.

For that reason the word ‘reasonable’ had been intro-

duced.” /d. at 156 (Netherlands Delegate). The nego-

tiators spent considerable time striking a balance

between the need of flight commanders to maintain

order and the legitimate expectation of passengers

that they be treated fairly and with dignity.

President Johnson’s message transmitting the

Tokyo Convention to the Senate for ratification and

the Senate Report recommending ratification strike

the same balance by recognizing that air crews must

act reasonably in exercising their authority to de-

plane passengers. In his message to the Senate,

President Johnson wrote that the Convention “pro-

vides that only those persons whom the aircraft

commander has reasonable grounds to believe have

committed, on board his aircraft, an act which is a

17a

serious offence can be ‘delivered’ [to the police}.”

Message from the President of the United States,

transmitting The Convention on Offenses and Certain

Other Acts Committed on Board Aircraft, Signed at

Tokyo on September 14, 1963, S. Exec. Rep. 90-L at 8

(Sept. 25, 1968). The Senate Report recommending

ratification explains that “if their actions are reason-

able and comply with the Convention, each aircraft

crew member and passenger, the aircraft owner or

operator, and the person for whom the flight is made,

all would have legal immunity.” S. Rep. No. 91-1083

(1970), as reprinted in 1970 U.S.C.C.A.N. 3996, 3997.

When interpreting international agreements, we

must also consult “the postratification understanding

of signatory nations.” Medellin, 552 U.S. at 507

(quotation omitted). The only other reported case

interpreting the Tokyo Convention, the Israeli deci-

sion of Zikry v. Air Canada, Civil File No. 1716/05 A

(Magistrates Court of Haifa 2006), also required

aircrews to act reasonably as a condition for Tokyo

immunity. In Zikry, the court held that the key

questions were “whether reasonable grounds [existed

to support] the suspicion that the Plaintiff had com-

mitted an offense on board the aircraft, as well as the

question of the reasonableness of the steps taken

against him.” Jd. § 5.

Finally, our interpretation is consistent with our

cases applying the analogous statute for domestic air

travel, 49 U.S.C. § 44902(b), which provides that “an

air carrier, intrastate air carrier, or foreign air carrier

may refuse to transport a passenger or property the

18a

carrier decides is, or might be, inimical to safety.”

Cordero, our first opinion interpreting section

44902(b)’s predecessor, held that airlines must act

reasonably. Highly pertinent to our case, Cordero

held that airlines don’t have immunity when they bar

passengers from boarding on the basis of “unreason-

ably or irrationally formed” beliefs. 681 F.2d at 671.

That interpretation was reaffirmed seventeen years

later by Newman, which also held that “the decision

to refuse passage cannot be unreasonable or irra-

tional.” 176 F.3d at 1131 (citing Cordero, 681 F.2d at

671).

Reasonableness is a well-established and easily-

understood standard, one that American courts are

accustomed to applying in a wide variety of situations

involving the behavior of individuals. “Arbitrary and

capricious,” by contrast, is a standard normally

applied to actions of government agencies or judicial

officers; it is seldom used to judge the conduct of

individuals in the real world. Juries determine

whether conduct is reasonable many times every day

but almost never whether conduct is “arbitrary and

capricious.” If “arbitrary and capricious” means

something other than “reasonable grounds,” we see

no basis for adopting a standard that departs from

that specified in the treaty. And, if “arbitrary and

capricious” is the same as “reasonable grounds,”

using different language to express the same idea can

only cause confusion.

We are aware that the First Circuit in Cerqueira

v. American Airlines, Inc., 520 F.3d 1 (1st Cir. 2008),

19a

adopted an “arbitrary or capricious” standard for

judging the behavior of airline crews who bar passen-

gers from flying on domestic flights. We decline to

follow Cerqueira. To begin with, the court’s discussion

of the issue is entirely dicta because the passengers

there were excluded from the flight by the police not

the airline: “During his conversations with the sky

marshals service, systems operations control, and the

chief pilot on duty, a state police officer approached

[the pilot] and told [him], point blank, ‘These three

gentlemen are not traveling with you today. It’s out of

your hands.’” Jd. at 8 (quotation omitted). It is thus

unclear why the First Circuit thought it necessary to

expound at length on this issue. Moreover, as ex-

plained above, Cordero adopts a_ reasonableness

standard and remits the issue to the jury. Cerqueira

thus departs from Cordero, even as it purports to

follow it. We are bound by Cordero and the language

of the Tokyo Convention, not Cerqueira, and therefore

conclude that airlines are immune from liability for

conduct covered by the Tokyo Convention only to the

extent flight commanders act reasonably in exercising

the powers granted to them under the treaty.

2. Summary Judgment. We recently ex-

plained that “summary judgment is generally an

inappropriate way to decide questions of reasonable-

ness because the jury’s unique competence in apply-

ing the reasonable man _ standard is’ thought

ordinarily to preclude summary judgment.” Gorman

v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1157

(9th Cir. 2009) (quotation omitted). We apply this

20a

principle in many areas of law. For example, it is

generally inappropriate to grant summary judgment

on the reasonableness of police conduct, see, e.g.,

Howell v. Polk, 532 F.3d 1025, 1027 (9th Cir. 2008)

(per curiam) (“[W]Je frequently entrust juries with the

task of determining the reasonableness of police

conduct.”), or when applying state tort law, see, e.g.,

Wallis v. Spencer, 202 F.3d 1126, 1144 (9th Cir. 2000)

(“[W]hether there was reasonable cause for the re-

moval of Lauren and Jessie from their home is a

question of fact for the jury; so... the City is not

entitled to summary judgment... .”).

Zikry, the Israeli case, applies this general

principle to the Tokyo Convention. The Zikry court

held that reasonableness had to be determined as a

matter of fact, not law. Like Alaska here, Air Canada

there sought dismissal of the complaint based on

Tokyo Convention immunity, but the court “rejected

the application and held that the question whether

reasonable grounds to the suspicion [sic] that the

Plaintiff had committed an offense on board the

aircraft, as well as the question of the reasonableness

of the steps taken against him, require[d] factual

clarifications and presentation of evidence.” Zikry § 5

(reciting its earlier order dated September 27, 2005).

Cordero and Newman are also crystal clear that

reasonableness is a jury question. Cordero held that

“it is peculiarly within the province of the trier of fact

to determine whether the defendant’s conduct was

reasonable.” 681 F.2d at 672. Judgment as a matter

of law was inappropriate, we held, because there was

2la

“ample evidence in the trial record from which the

jury might have concluded that [the captain] acted

unreasonably in excluding Cordero without even the

most cursory inquiry into the complaint against him.”

Id. Newman is no different. There the district court

granted summary judgment in favor of the airline but

we reversed, relying on Cordero to hold that reasona-

bleness must be resolved at trial. Newman, 176 F.3d

at 1132.

As in Zikry, Cordero and Newman, viewing the

evidence in the light most favorable to the plaintiffs,

a fact finder here could conclude that Captain

Swanigan did not have reasonable grounds to believe

that plaintiffs posed a threat to the security or order

of the aircraft. To begin with, plaintiffs presented

evidence that Swanigan didn’t have reasonable

grounds for diverting the plane to Reno. He made the

decision to divert after one of the flight attendants

called the cockpit and reported that “she had lost

control of the first class cabin.” Mansour Declaration

at { 6; see also Swanigan Deposition at 96 (“[She said]

I’ve lost control of the first-class cabin.”). Swanigan

asked no questions and did nothing else to confirm or

clarify this statement. Neither he nor his co-pilot

looked into the cabin through the cockpit window

which, as plaintiffs’ expert witness Captain Mark

Swint’ explained, is a “thick acrylic window” that “is

* Captain Mark Swint has been flying for United Airlines

for over two decades. He has 35 years of experience in the airline

industry, including as an Interview Captain and Line Check

(Continued on following page)

22a

significantly larger tha[n] the common ‘peep hole’ of

the average hotel room ... provides a significantly

clearer view ... is mounted in the door ... within

arm’s reach of the pilots when seated” and is “de-

signed to give the pilots an adequate idea of the

circumstances on the other side of the door.” Swint

Declaration at 7] 47, 48.° Indeed, immediately after

landing, Captain Swanigan told one of the flight

attendants that he “ha[d] no idea what went on back

there.” Swanigan Deposition at 115. A jury could

conclude that a reasonable captain should have tried

to find out something about what was going on in the

cabin before undertaking an emergency landing.

Swanigan claims that he and the co-pilot heard

shouting in the background when he spoke with the

flight attendant, which confirmed that there was

chaos in the cabin. Swanigan Deposition at 97. But

this claim is contested by plaintiffs and Shealy who

Airman for United Airlines. He was the subject of a United

training video that focused on his handling of a real in-flight

emergency that arose during one of his flights. Swint Declara-

tion at 9 13

° Amicus the International Air Line Pilots Association

attempts to explain in its brief that it was impractical or impos-

sible for either the pilot or co-pilot to look through the cockpit

window But these facts are not in the record and plaintiffs have

not had the opportunity to challenge them Captain Swint also

explains 1n his declaration that “[:]t is a simple matter to stand

up, turn around taking no more than one step and look through

the port. The entire process takes less than 5 seconds.” Swint

Declaration at 9 48 There is thus at least a dispute as to how a

reasonable captain would have responded in the arcumstances

23a

report that the passengers had fallen silent by the

time the flight attendant called the cockpit. See

Shealy Declaration at 99 (“All discussion and loud

voices stopped. [Duus] went and got a phone... .”);

Mansour Declaration at 76 (“Everyone was sitting

and no one but the flight attendant was speaking.”);

Ginena Declaration at ¥ 16 (“At all times while the

flight attendant was yelling no one else was yelling

or speaking as loud.”). As expert witness Captain

Swint said in his declaration, “it is difficult to under-

stand how Captain Swanigan could have allowed

this event to escalate to the level that it did without

ever asking anything about it.... Actions taken in

haste and without an understanding of the pertinent

facts are unreasonable and in some cases even

dangerous.” Swint Declaration at 7] 46, 55. A jury

'° Captain Swint also faults Captain Swamigan and the

Alaska flight crew for failing to adhere to the principles of Crew

Resource Management (CRM) CRM provides guidance on how

the crew should communicate with each other and deal with

problems; it is mandated by the FAA. See FAA Advisory Circular

120-51E (January 22, 2004) CRM’s emphasis on clear communi-

cations and coordination among crew members is at the heart of

the FAA’s Advisory Circular: “The importance of clear and

unambiguous communication must be stressed in all training

activities involving pilots, flight attendants, and aircraft dis-

patchers. The greater one’s concern in flight-related matters, the

greater is the need for clear communication” Jd. at { 12a.

Captain Swint points out that the crew of Alaska Airlines Flight

694 failed to follow these principles, so the flight commander

had no idea what the problem was 1n his cabin and decided to

divert the plane to Reno with insufficient knowledge of the

situation.

24a

could reasonably accept this conclusion after hearing

all the evidence.

Even if the jury were to find that Captain

Swanigan had reasonable grounds to divert the plane

to Reno, it could well conclude that he did not act

reasonably once the plane was on the ground. At the

time Swanigan landed the plane he had no direct

information about what had happened in the cabin.

He ordered the plaintiffs deplaned and arrested based

on his understanding at that time. Jurors could

reasonably find that Captain Swanigan should have

listened to plaintiffs’ side of the story before forcing

them off the plane and turning them over to the

police. The plane was on the ground; the cabin was

secure; the door to the jetway was open; the police

were nearby. The captain could have taken a few

minutes to find out for himself why he had been

required to divert the plane and make an emergency

landing. To assume that the fault lay with the pas-

sengers rather than the crew, without making the

least inquiry, may not have been reasonable. See

Cordero, 681 F.2d at 672.

Indeed, a captain’s failure to investigate a flight

attendant’s adverse report about a passenger is

precisely what Cordero held was unreasonable. 681

F.2d at 672. The jury there found that the pilot acted

unreasonably, but the district court granted judg-

ment notwithstanding the verdict to the airline. Jd. at

671. We reversed, holding: “There is ample evidence

in the trial record from which the jury might have

concluded that [the captain] acted unreasonably in

25a

excluding Cordero without even the most cursory

inquiry into the complaint against him.” Jd. at 672.

We see no reason to depart from that sensible hold-

ing.

Moreover, while Cordero involved only disembar-

kation, Swanigan went further by delivering plain-

tiffs to the police, which requires even stronger

support than merely removing a passenger from the

plane- Tokyo Convention Article 8 permits “[t]he

aircraft commander” to “disembark ... any person

who he has reasonable grounds to believe has com-

mitted, or is about to commit, on board the aircraft

. act[s]” which “whether or not they are offences,

may or do jeopardize the safety of the aircraft or of

persons or property therein or which jeopardize good

order and discipline on board.” (Emphasis added.)

Tokyo Convention Article 9, by contrast, only permits

the flight commander to “deliver to the competent

authorities ... any person who he has reasonable

grounds to believe has committed on board the

aircraft an act which, in his opinion, is a serious

offence according to the penai law of the State of

registration of the aircraft.” (Emphasis added.)"’

" See also Minutes at 184 (“[I]t was necessary to draw a

distinction between ..disembarkation . and... delivery...

In the latter case there was a presumption that the individual

was not free to go where he wished. He could not be delivered to

authorities unless he was under some form of restraint This

was not necessarily true in the case of disembarkation

[where] the individual was not, at that time, under any form of

restraint.”)

26a

According to Alaska, Captain Swanigan believed

plaintiffs’ conduct violated 49 U.S.C. § 46504 (inter-

ference with flight crew members and attendants).

But the statute is violated only if the interference is

accomplished “by assaulting or intimidating a flight

crew member or flight attendant.” Viewing plaintiffs’

version of the facts, they did absolutely nothing that

anyone could reasonably believe was criminal. None

of the passengers made threats or got physical with

the flight attendants. Even the story told by the flight

crew at the time of the incident does not disclose any

action on plaintiffs’ part that could amount to a

crime."

In his police report, Captain Swanigan described

the situation as follows: “Was advised by cabin crew

that passengers were congregating near the Flight

Deck Door and they would not stop doing it when

ordered. She said things were getting out of hand.”

Swanigan Police Report. Simple disobedience or

sluggish compliance with directions is not the same

as “assaulting” or “intimidating” a flight attendant.

And “things were getting out of hand,” does not

suggest criminal conduct. A flight commander is

“ Long after the incident, in a deposition, one of the flight

attendants claimed that both of the passengers to receive

Customer Inflight Disturbance Report forms tore or wadded

them up and threw them at her. Callaway Deposition at 140-44

That report 1s not only contradicted by Shealy and the plaintiffs,

but by the form itself which one of the plaintiffs produced intact.

27a

required to know a good deal more before turning

passengers over to the police.

As an officer charged with enforcing the statute

as to passengers aboard his aircraft, Captain

Swanigan had to familiarize himself with its terms.

See, e.g., United States v. Song Ja Cha, 597 F.3d 995,

1005 (9th Cir. 2010) (“The Guam police department’s

failure to know the governing law was reckless be-

havior; the police officers were a far stretch from

Leon’s ‘reasonably well trained officer.’” (quoting

United States v. Leon, 468 U.S. 897, 923 (1984)). A

jury could plausibly conclude that Swanigan lacked

reasonable grounds to believe plaintiffs had commit-

ted a “serious offence,” first because he unreasonably

failed to confirm his flight attendant’s story, and

second, because he had no grounds for believing that

plaintiffs had violated 49 U.S.C. § 46504, even accept-

ing everything the flight attendants told him. Indeed,

the jury could simply accept the expert testimony of

Captain Swint that Swanigan “had no reason or

evidence to believe that all nine passengers were

equally culpable of whatever offence he assumed had

been committed.... It is my opinion, that it was

impossible for Captain Swanigan to have had reason-

able grounds to believe, due to his lack of inquiry and

willingness to provide leadership in this event, that

any offence was being or about to be committed by

any passenger.” Swint Declaration at {| 65, 67.

A jury could also conclude that, even if Captain

Swanigan initially had grounds to believe that plain-

tiffs were disruptive or may have committed a serious

28a

offense, those grounds dissipated once the Reno police

and TSA exonerated plaintiffs and cleared them to

continue flying. Further, when some of the plaintiffs

asked Swanigan to let them re-board the airplane, he

refused on the grounds that “his flight attendant

would not allow it.” Rasikh Declaration at { 15.

Based on this evidence, a jury might well conclude

that Captain Swanigan’s refusal to let the Egyptians

continue on to their destination had nothing to do

with safety or order but was designed to placate a

flight attendant who had taken a dislike to certain

passengers, perhaps because of their nationality or

ethnicity. See Cerqueira, 520 F.3d at 24 (Lipez, J.,

dissenting from the denial of rehearing en banc)

(“The SOC manager made a separate decision as to

whether the passenger could be rebooked on a

flight.... In doing so, he may have relied — perhaps

unwittingly on information tainted by a flight

attendant’s racial animus.”)

Finally, Alaska and its supporting amici urge us

to affirm the district court on the ground that the

captain (or aircraft commander, as he is referred to in

the Tokyo Convention) must have very broad discre

tion in acting to preserve the safety of the plane and

its passengers, and must be able to rely on uncorrobo-

ated information he received from members of his

crew in making command decisions. We certainly

4

agree that the captain must be ¢%iec ts act decisively

in an emergency and, in doing se, rely on communi-

cations from his crew. A jury may reasonably con

clude that there was no emergency here. None of the

29a

passengers had made any threats, brandished a

weapon or touched a flight attendant. Nor had any of

the flight crew informed the captain that any of the

passengers had done anything to endanger the plane.

Even assuming the truth of everything that Captain

Swanigan and his crew now say happened, a jury

could conclude that the captain acted unreasonably in

diverting the plane to Reno, forcing plaintiffs to

disembark, turning them over to the authorities and

then refusing to let them re-board the flight after the

police had cleared them. We therefore reverse the

district court’s grant of summary judgment to Alaska

Airlines under the Tokyo Convention and remand for

these issues to be resolved at trial.

B. Defamation

1. After the plane landed, Captain Swanigan

and members of the crew gave formal statements

about the incident to the Reno Police and TSA offi-

cials. Plaintiffs claim that these reports were know-

ingly or recklessly false and filed defamation claims

based on them. The district court dismissed those

claims pursuant to Warsaw Convention Article 17,

which preempts local law remedies for claims if based

on conduct that occurs “on board the aircraft or in the

course of any of the operations of embarking or dis-

embarking.” El Al Israel Airlines, Ltd. v. Tsui Yuan

Tseng, 525 U.S. 155, 172 (1999) (quotation and cita-

tion omitted). Plaintiffs claim that the Warsaw Con-

vention does not apply because they had left the

30a

plane and thus any actions by the airline fell outside

the Convention’s protective umbrella.

In determining whether the accident causing a

passenger's injuries “took place ... in the course of

any of the operations of ... disembarking,” we con-

duct an “assessment of the total circumstances sur-

rounding a passenger’s injuries....” Maugnie uv.

Compagnie Nationale Air France, 549 F.2d 1256,

1257, 1262 (9th Cir. 1977). “[T]he Convention drafters

did not draw a clear line” for when disembarkation

ends, so we have always rejected an “inflexible rule.”

Id. at 1262. We have also explained that “(wJhether a

passenger is embarking or disembarking is a question

of federal law to be decided on the facts of each case.”

Schmidkunz v. Scandinavian Airlines Sys., 628 F.2d

1205, 1207 (9th Cir. 1980).

In this case, the statements were made in the

gate area immediately adjacent to the boarding ramp,

shortly after the plane landed. They were made for

the sole purpose of transferring custody of plaintiffs

from Alaska Airlines to the Reno Police, as author-

ized by the Tokyo Convention. The Tokyo Convention,

moreover, requires flight commanders to provide an

explanation to local authorities when they turn over

passengers to them. Tokyo Convention Arts. 8(2) &

9(3). It is thus fair to say that the pilot’s statements

to the police were part of the disembarkation process.

Considering “the total circumstances surrounding

| plaintiffs’] injuries, viewed against the background of

the intended meaning of Article 17,” Maugnie, 549

F.2d at 1262, we conclude that the crew’s report to

sla

the police was covered by the Warsaw Convention.

Our conclusion is in accord with Zikry, the only other

reported opinion that analyzes the relationship

between the Tokyo and Warsaw Conventions. As the

Zikry judge explained, “it is obvious that all the

events are connected to the flight. The [Warsaw]

Convention applies also to embarkation and disem-

barkation and all the activities following that were

links in one chain.” Zikry § 19. We therefore affirm

the district court’s dismissal of plaintiffs’ defamation

claims based on the statements made in the terminal.

2. Plaintiffs further allege that after Flight 694

took off from Reno to complete the trip to Las Vegas,

a member of the crew made an in-flight announce-

ment blaming plaintiffs for causing the diversion.

Plaintiffs filed an additional defamation claim for this

statement. Like the other defamation claims, the

district court dismissed this claim on the pleadings as

preempted by the Warsaw Convention.

In supplemental briefing, both the United States

and Egypt urge us to reverse this dismissal. Their

views deserve serious consideration. See, e.g., El Al

Israel Airlines, Ltd., 525 U.S. at 168 (interpreting the

Warsaw Convention and explaining that “[rJespect is

ordinarily due the reasonable views of the Executive

Branch concerning the meaning of an international

treaty”); Zicherman v. Korean Air Lines Co., 516 U.S.

217, 226 (1996) (“Because a treaty ratified by the

United States is ... an agreement among sovereign

powers, we have traditionally considered as aids to its

interpretation ... the postratification understanding

of the contracting parties.”).

Quoting from Articles 1(1) and 17, the United

States in its amicus brief argues that “(t]he Warsaw

Convention by its terms applies only to injuries

suffered during the ‘international carriage of persons.’

Such carriage ends when ‘the operations of ... dis-

embarking’ have completed.” Egypt agrees, quoting

from Article 17 and explaining that the key question

is “whether the passengers were still involved ‘in the

39

course of any of the operations of . . . disembarking.

Both the United States and Egypt argue that the

Warsaw Convention’s preemptive effect exists only so

long as the plaintiff is still on the airplane, embark-

ing onto the plane or disembarking from the plane.

Nothing in the Convention suggests that it extends to

lawsuits filed by former passengers for things that

happen on planes long after they've disembarked. We

therefore reverse the district court’s dismissal of plain-

tiffs’ defamation claim for the post-disembarkation,

in-flight announcement.

Il. Supplemental Complaint

Plaintiffs sought to add seven new defamation

claims based on statements Alaska’s employees made

to America West Airlines, to the Joint Terrorism Task

Force and in internal newsletters. Alaska stated in

internal newsletters that plaintiffs had been “argu-

mentative and abusive,” should have been “arrested”

and shouldn’t have been permitted to “proceed[] to

33a

another airline, [buy] tickets and flly] to their origi-

nal destination.” Alaska Airlines Chief Pilot’s News-

letter, Oct. 2, 2003. The newsletters also recounted

how Alaska “inform[ed] the other airline of these

people and the incident.” Jd. Additionaliy, Alaska

filed a formal report with the Joint Terrorism Task

Force in which it reported the entire Egyptian party

for causing a “disturbance” in which the captain

heard “lots of loud talking, bordering on yelling.”

Alaska JTTF Report. Plaintiffs attempted to add

defamation claims for these statements by filing a

supplemental complaint pursuant to Fed. R. Civ. P.

15(d), rather than by amending their complaint using

Fed. R. Civ. P. 15(a). Plaintiffs acknowledge that the

acts of defamation underlying these claims occurred

between September 29, 2003 and October 3, 2003,

and that their original complaint was filed on Sep-

tember 17, 2004. Plaintiffs claim, however, that they

did not have the information until it was supplied by

defendants in discovery, which itself was late.

Rule 15(d) provides a mechanism for parties to

file additional causes of action based on facts that

didn’t exist when the original complaint was filed.

See, e.g., Cabrera v. City of Huntington Park, 159

F.3d 374, 382 (9th Cir. 1998) (per curiam). Plaintiffs,

however, seek to add defamation claims arising from

conduct which happened nearly a year before they

filed their first complaint. These claims could not,

therefore, be brought as supplemental pleadings

under Rule 15(d). See, e.g., id.; U.S. for Use of Atkins

uv. Rerten, 313 F.2d 673, 674 (9th Cir. 1963) (“Since

34a

the additional allegations in appellant’s ‘amended

complaint’ related to events which had ‘happened

since the date of the pleading sought to be supple-

mented, Rule 15(d), Federal Rules of Civil Procedure,

was applicable.”); Wiluam W. Schwarzer et al., Cali-

fornia Practice Guide: Federal Civil Procedure Before

Trial § 8:1377 (The Rutter Group 2009) (“A pleading

may be ‘supplemented’ where the pleader desires to

set forth allegations concerning matters which have

taken place since the original pleading was filed.”).

The only available mechanism for adding these

claims was an amended complaint pursuant to Rule

15(a). But, despite ample warning from the district

court, which explained at length that plaintiffs’

claims were not properly brought as supplemental

pleadings, plaintiffs insist that these defamation

claims were properly filed under Rule 15(d). Their

brief presents the issue as simply: “Did the district

court improperly deny leave to file a supplemental

complaint alleging defamation claims accruing after

the original complaint was filed ... ?” The answer is

clearly “no” for the reasons explained above. Because

plaintiffs don’t make a Rule 15(a) argument, we say

nothing on that score. See, e.g., Seven Words LLC v.

Network Solutions, 260 F.3d 1089, 1097 (9th Cir.

2001) (“[It is a] longstanding rule that we do not

consider arguments not raised in the briefs.”).

Because we affirm the district court’s denial of

the motion as improperly brought under Rule 15(d),

we needn’t reach the question of whether Nevada’s

discovery rule tolled the statute of limitations. We

35a

leave the question of whether plaintiffs may now file

a Rule 15(a) motion for leave to amend their com-

plaint for the district judge to decide in the first

instance.”

We are mindful of the claims of Alaska Airlines

and its supporting amici that flight commanders

must be given wide latitude in making decisions to

preserve safety and orderly conduct aboard an air-

craft in flight. But passengers also have a legitimate

interest in being treated fairly and with dignity; they

are, after all, captives of the airline for the duration

of the flight, and may be stranded far from home if

not allowed to continue on the flight they have paid

for. Moreover, air crews have both de facto and de

jure law enforcement authority when the plane is in

the air.

These concerns are particularly acute in interna-

tional flights where passengers may be stranded not

only far from home, but confronting police in a foreign

country. The Tokyo Convention negotiators worried

about this possibility and deliberately chose not to

'* We do note that under Nevada law, the question of

whether plaintiffs were dilgent and the delay was caused by

Alaska — thereby tolling the statute of limitations — 1s a factual

one that is sufficiently contested in this case that it must be

decided by a jury. See, eg., Nev Power Co v. Monsanto Co., 955

F.2d 1304, 1307 (9th Cir. 1992) (“[Diligence] may be decided as a

matter of law only when uncontroverted evidence irrefutably

demonstrates plaintiff discovered or should have discovered the

fraudulent conduct.”)

36a

give flight crews unfettered discretion to deplane

passengers and turn them over to authorities; rather,

they insisted that flight crews act reasonably in doing

so. Treating foreign passengers fairly when they are

mistreated by our airlines will make it more likely

that Americans traveling abroad will be treated fairly

by foreign airlines and the foreign authorities where

they land.

The record contains substantial evidence that

would support a jury’s finding that Captain Swanigan

and his crew acted unreasonably toward the plain-

tiffs. We reverse the grant of summary judgment on

plaintiffs’ delay claims and remand them for trial

along with their defamation claim for the in-flight

announcement after the plane took off from Reno. We

affirm the dismissal of plaintiffs’ defamation claims

for the statements made on the ground and the

district court’s denial of plaintiffs’ motion to supple-

ment their complaint.

AFFIRMED IN PART, REVERSED IN PART

AND REMANDED.

OTERO, District Judge, dissenting in part and con-

curring in part:

The facts of this case revolve around an un-

fortunate in-flight incident that occurred September

29, 2003, on board an international flight from Van-

couver, British Columbia, to Las Vegas, Nevada

37a

resulting in the diversion of the aircraft and removal

of Plaintiffs.’

Depending on whose perspective of the events

one adopts, Captain Swanigan, Alaska’s vice presi-

dent of flight operations, is either a dedicated, experi-

enced pilot who believed that an in-flight emergency

required him to immediately land his aircraft, or a

simpleton in charge of a cockpit crew that failed to

follow airline procedures and who was buffaloed by

two vindictive flight attendants into needlessly

diverting the flight and forcing passengers off the

plane.’ I take the former view.

More importantly, the unintended but probable

consequence of the standard my colleagues adopt for

judging the in-flight conduct of a pilot under the

Tokyo Convention is risk to passenger and crew

safety — an affront to the principal purpose of the

Tokyo Convention.” The majority misinterprets the

standard and examines facts in hindsight that were

* The incident occurred just two years after the September

11, 2001 hyackings and attacks on New York and Washington,

D.C

* Captain Swanigan has been an Alaska pilot since 1980 In

1993, he was promoted to Chief Pilot, a position in which he

managed the entire pilot group at Alaska. In 1995, he was

promoted to Vice President of Flight Operations, in charge of a

$400 million budget and all pilots, training, flight simulation,

and flight control.

> Convention on Offenses and Certain Other Acts Commit-

ted on Board Aircraft, Sept. 14, 1963, 20 UST 2941, 704

U.N.T.S. 219 (1969) [hereinafter Tokyo Convention].

38a

unknown to the captain at the time of the event,

concluding that Captain Swanigan may have acted

unreasonably. I respectfully dissent from the adop-

tion of a reasonableness standard in favor of a more

deferential arbitrary or capricious standard.

I. Facts

It is imperative to recite the facts from the per-

spective of Captain Swanigan.* While the majority

correctly states that evidence must be viewed in the

light most favorable to the plaintiffs in a motion for

summary judgment, using the correct standard for

judging the pilot’s decision requires us to restrict the

analysis to the information that the pilot knew at the

moment a decision was required. Walk with me for a

minute and consider the incident from the perspec-

tive of Captain Swanigan.’

* There is no material dispute of facts as to the information

that was before Captain Swanigan.

* Indeed, the majonty’s recounting of the facts includes

many pieces of information that are irrelevant for the purposes

of judging the captain’s decision Not only does the majority

include such tidbits as whether the passengers’ conversations

with one another were pleasant or not — something the captain

could not possibly have known or factored into his decision — but

my colleagues also rely heavily on the testimony of Kimberlie

Shealy, whom they believe provides “the only independent

account ” Majority Op. at 10963 But Ms. Shealy has a dog in

this fight; she was a fellow first class passenger inconvemenced

because her flight was diverted. Life experience suggests that a

passenger whose plans were significantly altered due to an

unscheduled landing might not view the airline in a completely

(Continued on following page)

39a

A. The Diversion of the Aircraft

About one hour into the flight, approximately 65

miles south of Reno, Nevada, Captain Swanigan

received a call on the aircraft interphone from flight

attendant Ms. Calloway. Ms. Calloway told him, “I’ve

got some passengers giving me a bit of a problem here

in first class. I'd like to have security meet the air-

plane when we get in.” Captain Swanigan responded,

“Is there anything urgent, anything we need to

know?” Ms. Calloway said, “No, I think I’ve got it

under control.” Following the conversation, Captain

Swanigan put the aircraft into “lockdown mode” and

turned on the “fasten seat belt” sign.

Minutes later, Captain Swanigan received a

second call from Ms. Calloway. According to Captain

Swanigan:

She came across distraught; almost sounded

like she was crying, to me, and said, Mike,

I’ve lost control of the first-class cabin. And

when I heard that, also I heard a bunch of

yelling and screaming coming through the

interphone. ... I’ve been [with] the airline 26

years; ve never heard anything like that in

my entire career.

objective hght See Cordero v Cia Mexicana De Aviacion, S.A.,

681 F.2d 669 (1982) In any event, at the time he acted, Captain

Swanigan had no information regarding Ms. Shealy’s account

and could not exit the cockpit to inquire further See FAA Crew

Training Manual, Common Strategy for Hijack, app. II at 21. In

the event of a disturbance, pilots are to remain in the closed

cockpit, and cannot leave the cabin to assist crew members.

40a

Captain Swanigan confirmed with First Officer

roberts that he was indeed hearin 1e yelling anc

Roberts that h leed | x the yelling 1

screaming in the background. Upon confirmation,

Captain Swanigan told Ms. Calloway “we’re landing

the airplane now.”

At the time of this decision, the aircraft was

approximately 100 miles past Reno and 200 miles

from Las Vegas, with a difference in flight time of

approximately 25 minutes. As Alaska Flight 694 was

traveling at approximately 500 miles per hour, this

means that Captain Swanigan only had a few mo-

ments to make a decision as to whether to divert the

plane to Reno or commit to continuing all the way to

Las Vegas. Captain Swanigan contacted air traffic

control to report the passenger disturbance and to

request permission to make a forced emergency

landing at the nearest suitable airport. He received

permission and landed the aircraft in Reno.

Plaintiffs and Shealy claim it was Ms. Duus and not Ms.

Calloway who called Captain Swanigan. However, they do not

dispute that he was told by a flight attendant that there had

been a loss of control in the first class cabin. Plaintiffs addition

ally claim that Captain Swanigan hed about hearing screaming

during the phone call. However, according to Plaintiff Reda

Ginena, the flight attendant “hterally screamed into the phone

that she had lost control of the first class cabin . ” Thus, there

is no dispute that Captain Swanigan heard screaming

Upon landing, the aircraft was met at the gate by

officers from the Reno-Tahoe Airport Police Depart-

ment. Captain Swanigan requested that Ms. Callo-

way assist the officers in securing the first class

cabin, and then meet him at the top of the jetway to

4la

B. The Removal of Plaintiffs from the Atr-

craft

discuss what had happened on board.

During his meeting with Ms. Calloway, Captain

Swanigan learned the following:

There were six passengers involved.

They began causing problems during de-

parture operations by distracting Ms.

Calloway during safety briefings and

continuing to use their cell phones after

being asked to turn them off.

While in flight, they congregated near

the cockpit door, forward galley, and the

forward lavatory. When told that these

actions were prohibited, they responded:

“{YJou Americans |are!] so paranoid and

all of these safety and security regula-

tions [are] stupid.”

They refused to leave the restricted area

in the front of the airplane.

After several verbal warnings, Ms. Cal

loway gave them a written warning and

they “exploded” at that point.

42a

° The fact that there were six people in a

“hostile mood” became “very intimidat

ing” to the flight attendant crew.

Based on these representations, Captain Swanigan

believed that the offending passengers had interfered

with his flight crew in violation of federal law.

Captain Swanigan asked the officers to remove

the offending passengers from the aircraft and press

charges. Captain Swanigan had Ms. Calloway return

to the first class cabin to identify the offending pas-

sengers. After Plaintiffs were identified, the record

indicates that three of the Plaintiffs were asked to

exit and then escorted off the aircraft (the other

Plaintiffs had already voluntarily deplaned).’

Upon reaching the terminal end of the jetway,

Plaintiffs were led to an adjacent gate area where

additional law enforcement officials were stationed.

Captain Swanigan, Ms. Calloway, and one of the

remaining two flight attendants, joined Plaintiffs.

The parties produced written statements recounting

their respective versions of the incident. The officers

Although Plaintiffs contest this point and argue that all

Plaintiffs were delivered, Judge Jones clarified any ambiguity in

the record at oral argument by specifically asking Plaintiffs’

counsel who extracted them and whether they left willfully. In

response, Plaintiffs’ counsel unequivocally admitted that the

Reno-Tahoe airport police asked three Plaintiffs to leave and

that those three “were removed from the aircraft but all the [sic]

nine people who were traveling with them left simultaneous

ly... They willfully chose to leave.” Appellee’s Supplemental

Excerpts of R. 8.17-25, 9 2-7

43a

ultimately determined that no crime had occurred

and informed Captain Swanigan that Plaintiffs would

not be arrested. The Plaintiffs who were escorted off

the aircraft were refused carriage, and with the

assistance of the officers, were boarded on a flight to

Las Vegas on a different airline.

Captain Swanigan and his flight crew returned

to the aircraft and resumed the flight to Las Vegas.

According to Plaintiffs, once back in the air, “one of

[Alaska’s] flight attendants made an announcement

to all passengers that the flight had been diverted

and delayed due to a disturbance created by the

plaintiffs.”

Il. Standard of Care

A. Under the Tokyo Convention, the Atr-

craft Commander’s Actions Are Judged

Under a Deferentital Reasonableness

Standard: Her Actions Are Protected

Unless They Are Arbitrary or Capri-

cious.

The majority correctly states that the “interpre-

tation of a treaty, like the interpretation of a statute,

begins with its text... .” Medellin v. Texas, 128 S. Ct.

1346, 1357 (2008) Gnternal quotation marks and

citations omitted). But because “a treaty ratified by

the United States is an agreement among sovereign

powers, we have also considered as aids to its inter-

pretation the negotiation and drafting history of the

treaty as well as the postratification understanding of

44a

signatory nations.” /d. at 1357 (nternal quotation

marks and citations omitted); see also Air France v.

Saks, 470 U.S. 392, 396 (1985) (“‘{T]reaties are

construed more liberally than private agreements,

and to ascertain their meaning [courts] may look

beyond the written words to the history of the treaty,

the negotiations, and the practical construction

adopted by the parties.’”) (quoting Choctaw Nation of

Indians v. United States, 318 U.S. 423, 431-32

(1943)). Accordingly, courts look to extrinsic sources

to aid in the interpretation of a treaty even with a

relatively low level of ambiguity.

The existence of analogous United States law

also may be relevant to the analysis. Cf. In re Extra-

dition of Smyth, 72 F.3d 1433, 1441 (9th Cir. 1996)

(Reinhardt, J., joined by Pregerson, Noonan &

O’Scannlain, JJ., dissenting) (“The panel’s interpreta-

tion of the Treaty is also inconsistent with the inter-

pretation given the analogous United States law

governing asylum and withholding of deporta-

tion... .”); Delcht Carrier SpA v. Rotorex Corp., 71

F.3d 1024, 1028 (2d Cir. 1995) (“Caselaw interpreting

analogous provisions of Article 2 of the Uniform

Commercial Code (“UCC”) may also inform a court

where the language of the relevant [United Nations

Convention on Contracts for the International Sale of

Goods] provisions tracks that of the UCC.”).

Application of these principles leads me to con-

clude that the Tokyo Convention affords considerable

45a

deference to the in-flight actions of the aircraft com-

mander. In short, such actions are permitted unless

arbitrary or capricious.

Although the Text of the Tokyo Con-

vention Is Unclear as to the Degree

of Deference Owed the _ Aitrcraft

Commander, the Context tn Which

the Words Are Used Supports a Def-

erential Standard.

Interpretation of the Tokyo Convention standard

turns on the meaning of the terms “reasonable

grounds to believe” and “reasonable measures

which are necessary.” The majority correctly states

that the text of the treaty uses the words “reasonable

grounds” and not “arbitrary and capricious.” Majority

Op. at 10970. However, it is not clear that in using

the phrase “reasonable grounds,” the drafters intend-

ed the aircraft commander's actions to be judged by a

reasonableness standard as that standard has been

interpreted and applied by American courts. These

terms are not defined in the treaty, and the majority

incorrectly asserts that the terms are clear on their

face. Majority Op. at 10971. While I acknowledge tha

the term “reasonable” is familiar in American law, I

emphasize that the relevant text in the instant case

comes from a multilateral agreement among nations

with significant differences in both procedural and

46a

substantive law.* Examining the context in which the

words are used to gain a sense of what the drafters

intended to accomplish is a prudent step for courts to

take. It would be an oversight on our part to assume

that the phrase “reasonable grounds” in the Tokyo

Convention should be construed to mean the Ameri-

can reasonableness standard.

Alaska and the United States argue that these

terms impose a standard of deferential reasonable-

ness, while the majority agrees with Plaintiffs in

holding that they impose a standard that sounds in

negligence. Given the facial ambiguity of these

terms, see Yusupov v. Attorney General, 518 F.3d 185,

200 (3d Cir. 2008) (describing the phrase “reasonable

* Under the auspices of the International Civil Aviation

Organization (“ICAO”), a specialized agency of the United

Nations, the representatives of 61 governments participated in

the drafting and enactment of the Tokyo Convention See Robert

P. Boyle & Roy Pulsifer, The Tokyo Convention on Offenses and

Certain Other Acts Committed on Board Aircraft, 30 J Air L. &

Comm. 305, 305 (1964) The Tokyo Convention was signed on

September 14, 1963, by 16 of the states represented, including

the United States and Canada, and was entered into force on

December 4, 1969. Dep't of State, Treaties in Force: A List of

Treaties and Other International Agreements of the United States

tn Force on January 1, 2007, 24 (2007) There are currently 185

parties to the Tokyo Convention, including the United States

and Canada 7d.

* In our order dated April 23, 2008, we invited the United

States to set forth its views as to the proper application of the

Tokyo Convention. The Airline Pilots Association, International

and the Air Transport Association of Amenca, Inc. had previous-

ly filed amicus curiae briefs 1n support of a deferential standard

47a

grounds to believe” as “ambiguous”); Williams Natu-

ral Gas Co. v. F.E.R.C., 943 F.2d 1320, 1331 (D.C.

Cir. 1991) (stating that the words “reasonable” and

“necessary” “are among the broadest in the congres-

sional lexicon of delegation”), the dispute cannot be

resolved solely by reference to the text of the stand-

ard. However, the context in which these terms are

used does support the deferential] standard urged by

Alaska and the United States.“ Specifically, the

“[plowers of the aircraft commander” are broadly

defined under the Tokyo Convention in a manner

that suggests considerable deference should be owed

the aircraft commander in her exercise of those

powers.

First, deference is given to the aircraft com-

mander as to whether to take action at all. Articles 6,

8, and 9 of the Tokyo Convention state that the

aircraft commander “may” take action, not that he

must take action. Only when action is taken do

certain affirmative obligations attach.

Second, action is permitted under a broad set of

circumstances. See Tokyo Convention, supra note 1,

art. 1. The aircraft commander need not wait for a

passenger to commit a dangerous or disorderly act; it

* See Brief for the United States of America as Amicus

Cunae at 9, Eid v Alaska Arrlines, Inc., No. 06-16457 (9th Cir

July 22, 2008) (“Given the breadth of discretion afforded the

aircraft captain and the purpose of the Convention's grant of

immunity, review of actions taken by a captain pursuant to the

Tokyo Convention must be highly deferential.”)

48a

is enough if the aircraft commander believes that the

passenger “is about to commit” such an act. /d. at art.

6. Nor need the aircraft commander determine

whether a passenger’s act will in fact imperil the

aircraft, or even affect safety per se; it is enough that

the act “may” jeopardize the safety of the aircraft or

will jeopardize “good order and discipline on board.”

Id. at art. 1.

Third, the aircraft commander is authorized to

decide what action to take with regard to a disruptive

passenger. Provided such action is necessary to

protect the safety of the aircraft or persons or proper-

ty therein, to maintain good order and discipline on

board, or to facilitate delivery or disembarkation of a

passenger, the aircraft commander is entitled to take

any “reasonable measure [ |” under the circumstanc-

e

6 8)

Lastly, where the aircraft commander acts in

accordance with the Tokyo Convention, neither he,

nor any other member of his crew, nor the airline,

may be held responsible in “any proceeding.” Such

broad immunity allows the aircraft commander to act

without hesitation to guard passenger safety, and

without concern of being second-guessed if she does —

a strong indication that a commander’s judgments

are entitled to deference absent a showing of arbi-

trary or capricious behavior.

In hght of the deference given the aircraft com-

mander as to whether, when, and how to act, as well

as the accompanying grant of blanket immunity,

49a

consistency suggests that the terms “reasonable

grounds to believe” and “reasonable measures

which are necessary” should be interpreted broadly in

favor of a deferential standard.

2. The Negotiation and Drafting His-

tory of the Tokyo Convention Sup-

ports an Arbitrary or Capricious

Standard.

An evaluation of the negotiation and drafting

history of the Tokyo Convention — another vital step

to take in order to apply the treaty properly — sup-

ports a finding that the drafters intended for the

aircraft commander’s actions to be judged by a defer-

ential reasonableness standard.

With respect to the requirement that the aircraft

commander’s belief be based on “reasonable grounds,”

the drafters opposed any efforts to impose a more

severe test. Their comments suggest that by “reason-

able,” the Tokyo Convention drafters meant to protect

the actions of the aircraft commander so long as they

are neither arbitrary nor capricious.

" This 1s especially true when considering that the Tokyo

Convention was developed at a time when there was a discerna-

ble increase in passenger incidents that threatened the safety of

international air travel, including violent hyacking See Gerald

F. Fitzgerald, The Development of International Rules Concern-

ing Offences and Certain Other Acts on Board Aircraft, 1 CAN.

YB.INTLL 230, 240-41 (1963)

50a

For instance, the parties rejected a proposal by

the Swiss delegate to substitute the term “serious

grounds” for the term “reasonable grounds.” The

United States delegate explained why the “less se-

vere” reasonable standard was preferred:

At least in the United States legal system,

the phrase “serious grounds” had no signifi-

cant legal meaning, while, on the other hand,

the phrase “reasonable grounds” had a sub-

stantial legal significance. Within the gen-

eral concept of United States law, the phrase

“reasonable grounds” would give the impres-

sion that the aircraft commander would be

required to have a substantial basis for his

belief, that he could not act on the basis of

facts which were inadequate to support his

belief to the effect that a person had commit-

ted or was about to commit the kind of act

under consideration. Jn other words, the atr-

craft commander could not act arbitrarily or

caprictously.

International Civil Aviation Organization, Minutes,

International Conference on Air Law, Tokyo, Aug.-

Sept. 1963, Doc. 8565-LC.152-1, at 155 [hereinafter

Minutes] (emphasis added).

The majority cites the same statement to support

its position that the standard should be reasonable-

ness. Majority Op. at 10971. But the panel’s use of

the American delegate’s statement is misplaced for

three reasons.

5la

First, my colleagues curiously omit the last

sentence. This is significant — the sentence cuts

against the majority’s notion that the arbitrary or

capricious standard should be cabined to the actions

of government agencies or judicial officers and also

directly rebuts the majority’s claim that the drafting

history “say[s] nothing about ‘arbitrary and capri-

cious.’” Majority Op. at 10970. Clearly, the standard

was considered to be one that applied to individual

aircraft commanders. Second, not even the American

delegate described “reasonable grounds” as referring

to some sort of objective, “reasonable person” point of

view that is so familiar to American torts scholars.

Instead, the delegate simply stated that an aircraft

commander “could not act on the basis of facts which

were inadequate to support his belief.” Minutes,

supra (emphasis added). Ultimately, the standard

was intended to leave room for a commander to freely

make the best judgment possible, without having to

conform to an amorphous “reasonableness” standard.

Finally, the majority uses an American delegate’s

statement as affirmation that other nations had all

agreed to abide by the American reasonableness

standard. But the fact that “reasonableness” is a

familiar term in American jurisprudence should not

preclude us from examining the intent of the other

parties if we are to faithfully execute the true mean-

ing of the treaty. If anything, the American delegate’s

statement illustrates the very reason why closely

examining the treaty’s drafting history is critical ~

certain terms have different meanings for the differ-

ent nations represented.

52a

Examining the drafting history from a holistic

point of view, then, demonstrates that the progres-

sion of the drafting went from a restrictive standard

to a deferential one. The parties rejected a proposal

by the Argentinian delegate to add words “which

would indicate that the reasonable belief of the

aircraft commander must be founded on some con-

crete external facts.” Jd. at 179. The Dutch delegate

stated that such a requirement would impose too

“strict and rigid” a standard. /d. at 178.

Similarly, as to the requirement that the

“measures” taken by the aircraft commander be

“reasonable” and “necessary,” the parties appear to

have rejected a simple negligence standard in favor of

an arbitrary or capricious standard. The parties

rejected a proposal to delete the word “necessary”

because, as explained by the Greek delegate, “the

word ‘necessary gave a guarantee that the aircraft

commander would not exercise his powers in an

arbitrary way.” Id. at 174 (emphasis added). The

parties also opposed a French proposal to withhold

immunity “if it were proved that [the aircraft com-

mander} had been at fault.” Jd. at 219. According to

the delegate from the Federal Republic of Germany,

the word “reasonable” sufficiently established that

the aircraft commander did not enjoy unlimited

immunity. Immunity would be withheld only “[ilf the

aircraft commander did something without reasona-

ble grounds, if he intentionally abused his powers or if

he was guilty of serious negligence....” Id. at 227

53a

(emphasis added). In light of similar opposition, the

French delegate withdrew his proposal.

To be sure, the drafting history is not, as the

majority writes, “entirely consistent” with a reasona-

bleness standard. A thorough and careful examina-

tion of the drafting history indicates that the

standard should be deferential to the commander.

3. The Majority’s Examination of Zikry

Is Incomplete.

As the majority indicates, the Israeli case Zikry

v. Atr Canada appears to be the only published

decision interpreting the Tokyo Convention’s reason-

ableness standard. See Majority Op. at 10972-73. The

majority also correctly points out that the court in

Zikry held that the key questions were whether the

captain had “reasonable grounds to believe that an

act had been committed which jeopardizeld] the

safety of the flight and its passengers” and whether

“the steps taken were reasonable.” See Majority Op.

at 10973; Zikry v. Air Canada, Civil File No. 1716/05

A (Magistrate Court of Haifa 2006). But the majority

again misses the point: the word “reasonable” does

not necessarily carry the same meaning across all

legal systems. Accordingly, we must do more than a

cursory search for the word “reasonable” in foreign

opinions to properly interpret the Tokyo Convention.

In fact, Zikry itself contains language that indi-

cates something other than the negligence-esque

standard that my colleagues adopt. According to the

54a

court in Zikry, the proper standard conferred “exten-

sive and wide authority” upon the captain. Jd. The

court also emphasized that “facts are not to be exam-

ined by hindsight [as the majority has done here], but

at the time of the actual event.” Jd. Such an interpre-

tation is consistent with the arbitrary or capricious

standard that the Tokyo Convention establishes, and

actually sounds much like the language that this

court used in the Cordero and Newman cases to adopt

a deferential reasonableness standard. See Newman

v. American Airlines, Inc., 176 F.3d 1128, 1131

(1999); Cordero, 681 F.2d at 672.

Finally, it is worth recapping the material facts

from Zikry, for they help illustrate the degree of

deference the pilot should receive in her decisions.

The plaintiff in Zikry was suspected of smoking a

cigarette in a lavatory on a flight from Israel to

Canada, detained by police upon arriving in Canada,

and refused carriage by the airline on a subsequent

leg of the flight. Finding that immunity was warrant-

ed, the court dismissed the action. See Zikry, Civil

File No. 1716/05 A. A passenger who is smoking on a

flight, while posing an annoyance to other passen-

gers, can hardly be deemed an emergency situation.

Yet the court in Zikry applied a deferential standard,

isolating the facts to what the pilot knew at the time

of the event and granting “extensive and wide author-

ity” upon the pilot in his decision to refuse carriage to

the passenger. In the instant matter, Captain

Swanigan faced a much more dire situation than a

passenger smoking a cigarette — he received word

55a

from a flight attendant that she had lost control of

the cabin. Relying on his judgment and experience

and knowing that he had limited opportunity to act,

he landed the aircraft in response to what he legiti-

mately perceived to be a grave threat. Presumably, if

the Tokyo Convention grants deference to a pilot who

bases his decision on a passenger smoking a ciga-

rette, it also grants deference to a pilot who bases his

decision on belief that the crew lost control of the

cabin.

4. 49 U.S.C. §$ 44902(6) Supports an

Arbitrary or Capricious Standard.

The majority correctly recognizes 49 U.S.C.

§ 44902(b) as the analogous statute for domestic air

travel. But my colleagues interpret it to impose a

reasonableness standard, when courts’ prior interpre-

tations of the statute indicate otherwise. Under 49

U.S.C. § 44902(b), “an air carrier, intrastate air

carrier, or foreign air carrier may refuse to transport

a passenger or property the carrier decides is, or

might be, inimical to safety.” Like the Tokyo Conven

tion, this statute authorizes airlines to deny passage

to air travelers under certain circumstances. Alt-

hough § 44902(b) does not contain the phrase “rea

sonable grounds” like the Tokyo Convention, courts

have read into the statute a deferential reasonable-

ness standard akin to that under the Tokyo Conven-

tion: the exercise of power under § 44902(b) is proper

where the aircraft commander’s belief that a passen-

ger is or might be inimical to safety is reasonable,

56a

and where the action taken based upon that belief is

reasonable. These same courts have interpreted

“reasonableness” to refer to actions that are neither

arbitrary nor capricious; that is, deference is inherent

in this context. Based on the similarity of the

§ 44902(b) and Tokyo Convention standards, as well

as the similarity of circumstances to which these

standards apply, the case law interpreting § 44902(b)’s

reasonableness requirement is particularly relevant

to the instant analysis.

The first articulation of § 44902(b)’s deferential

reasonableness standard was set out by the Second

Circuit in Williams v. Trans World Airlines, 509 F.2d

942 (2d Cir. 1975):

The test of whether or not the airline proper

ly exercised its power... to refuse passage to

an applicant or ticket-holder rests upon the

facts and circumstances of the case as known

to the airline at the time it formed its opin

ion and made its decision and whether or not

the opinion and decision were rational and

reasonable and not capricious or arbitrary in

the light of those facts and circumstances.

They are not to be tested by other facts later

disclosed by hindsight.

Id. at 948. The court emphasized that a deferential]

standard requiring “less than absolute certainty” was

necessary because decisions would need to be made in

a compressed time frame and in light of the potential

risks of inaction. See rd. at 946, 948. Accordingly, the

air carrier need not make a “thorough inquiry” before

5ila

proceeding under the statute. Jd. at 948. A com-

pressed time frame, of course, is precisely what

Captain Swanigan was facing.

This court adopted the Williams test in Cordero

when it held that “the district court properly in-

structed the jury in the precise language of the Wil-

liams test.” The majority recognizes that Cordero

“held that airlines don’t have immunity when they

bar passengers from boarding on the basis of ‘unrea-

sonably or irrationally formed’ beliefs.” Majority Op.

at 10973 (citing Cordero, 681 F.2d at 671). It is not

clear, however, why the majority believes that this

establishes a reasonableness standard. There is a

subtle but important difference between examining

an aircraft commander’s decisions under a reason-

ableness standard and permitting a commander’s

actions unless unreasonable. The language in

Cordero establishes the latter, which aligns with the

arbitrary or capricious standard as I have articulated

above. The majority’s citation of Newman is also

puzzling for the same reason. My colleagues believe

that this court further supported a_ reasonable-

ness standard in Newman when we held that “the

decision to refuse passage cannot be unreasonable or

irrational.” Id. (emphasis added). Again, this lan-

guage supports an arbitrary or capricious standard,

not a reasonableness standard.

The Williams test was adopted most recently by

the First Circuit in Cerqueira v. American Airlines,

Inc., 520 F.3d 1 (2008). The court clarified that “[tJhe

arbitrariness or capriciousness standard here is not

58a

the same as reasonableness under a_ negligence

standard.” /d. at 14 n.17. Rather, an arbitrary or

capricious standard appears to create a presumption

of reasonableness. /d. at 14. According to the court:

Some courts have described an air carrier’s

reliance on § 44902(b) as a defense in the na-

ture of an immunity.... In our view,

§ 44902(b) does not merely create a defense:

the statute is an affirmative grant of permis-

sion to the air carrier. Congress specifically

authorized permissive refusals by air carri-

ers; Congress did not say § 44902 was merely

creating a defense. It is the plaintiff who car-

ries the burden to show that § 44902(b) is in-

applicable.

Id. The court, like other courts that have adopted the

Williams test, stated that broad discretion is war-

ranted because safety is the “first priority” in air

traffic, as confirmed by the legislative history behind

§ 44902(b), and decisions implicating safety concerns

“have to be made very quickly and based on limited

information.” Jd. at 12, 14.

Ensuring safety in air commerce is similarly the

primary objective of the Tokyo Convention. See S.

Rep. No. 91-1083, 1970 U.S.C.C.A.N. at 3997 (“The

principal purpose of the Tokyo Convention is to

promote aviation safety....”); Brief for the United

States of America as Amicus Curiae at 2, Eid, No. 06-

16457 (9th Cir. July 22, 2008) (“The ‘principal pur-

pose’ of the Tokyo Convention was ‘the enhancement

of safety’ aboard aircraft.”). The drafters of the Tokyo

59a

Convention believed that giving immunity for “rea-

sonable actions” would “enhance the proper attitudes

and actions necessary to significantly contribute to

safety of flight in international aviation.” [d. at 3997-

98. The drafters, like the courts that have interpreted

§ 44902(b), crafted a standard that takes into account

the demanding and time-sensitive nature of an air-

craft commander’s decisions. See Minutes, supra, at

223 (“While [the aircraft commander} would be com-

parable to the captain of a ship, he would have to deal

with situations that might be more urgent.... The

Conference should give some guidance to the aircraft

commander who was given powers in the general

interest. If nothing were included in the Convention

on the point under discussion, the aircraft command-

er might have to hesitate and might, perhaps, do

nothing in circumstances in which he should have

acted.”)."*

At the same time, the drafters were certainly

mindful of the rights of passengers to be free from

unwarranted discrimination, and the majority cor-

rectly points this out. But safety of civil aviation was

the principal objective of the Tokyo Convention. See

Minutes, supra, at 156 (“[T]here has always been an

attempt to keep in sight two objectives: Firstly, the

safety of civil aviation, and, secondly, the guarantees

for individual freedom. For that reason the word

’ This point is particularly true where the aircraft is

actually in flight, a circumstance faced by Captain Swamgan

and specifically addressed under the Tokyo Convention.

60a

‘reasonable’ had been introduced.”) (emphasis added).

The majority again cites to the same statement — this

one made by the Dutch delegate — but comes to an

odd conclusion, implying that the two objectives at all

times and under all circumstances are to be weighed

equally. Majority Op. at 10972. It is entirely possible

for two objectives to exist but have one take prece-

dence over the other; indeed, the language itself

suggests this. No statement in the drafting history

indicates that these two goals are equal in im-

portance, although we must assume they are inter-

twined. There is no mention of “twin” or “dual” aims,

only that of having two goals. An arbitrary or capri-

cious standard, which grants deference to the aircraft

commander to allow her to firmly and confidently

make decisions concerning the safety of passengers

but denies her immunity when those decisions are

irrational and infringe on individuals’ rights, com-

ports more closely with the intent of the Tokyo Con-

vention.

It is important to state that deeming individual

freedoms an important but secondary goal of the

Tokyo Convention does not mean they are in danger

of being violated anytime an aircraft takes flight. In

describing the arbitrary or capricious standard, this

court stated:

The reasonableness of the carrier’s opinion,

therefore, is to be tested on the information

available to the airline at the moment a deci-

sion is required. There is correspondingly no

duty to conduct an indepth investigation into

6la

a ticket-holder’s potentially dangerous pro-

clivities. We believe this facet of the test pro-

vides a reasonable balance between safety

concerns and the right of a ticket-holder to

be free from unwarranted discrimination.

Cordero, 681 F.2d at 672. An arbitrary or capricious

standard, while broad, thus has clear limits. Individ-

uals’ freedom will not be compromised in the pursuit

of safety, as the majority seems to suggest.

In light of these shared objectives and considera-

tions, the adoption of an arbitrary or capricious

standard governing actions under § 44902(b) strongly

supports the adoption of a like standard governing

actions under the Tokyo Convention.

5. The Tokyo Convention Establishes

an Arbitrary or Capricious Stand-

ard for Judging the Actions of the

Aircraft Commander.

In light of the foregoing, I believe an arbitrary or

capricious standard is proper for judging the actions

of an aircraft commander under the Tokyo Conven-

tion akin to that articulated in the § 44902(b) line of

cases. An aircraft commander’s actions are protected

under the Tokyo Convention when the belief warrant-

ing the taking of action is neither arbitrary nor

capricious and when the action taken on the basis of

said belief is neither arbitrary nor capricious. Such a

standard meets the principal goal of promoting air

safety as well as the goal of protecting the rights of

62a

passengers to be free from unwarranted discrimina-

tion. A negligence standard, on the other hand, will

result in hesitation by the pilot in circumstances

where he should have acted, second-guessing by

courts, and the discovery of arguments which had

escaped the attention of the aircraft commander. See

Minutes, supra, at 223.

B. The Diversion of the Aircraft Was Neti-

ther Arbitrary Nor Capricious.

Captain Swanigan’s decision to divert the air-

craft is analyzed under Article 6." According to

Alaska, Captain Swanigan had reasonable grounds to

believe that Plaintiffs had committed or were about to

commit acts jeopardizing safety, good order, and

discipline on board, and that diversion of the flight

'’ The making of a forced landing is an action explicitly

contemplated by the Tokyo Convention. (See, e.g., Tokyo Conven-

tion, supra note 2, art 5(2) (“In the case of a forced land-

ing . ”).) However, it 1s unclear whether this act should be

analyzed under Article 6 or under Articles 8 or 9 Neither Article

8 nor 9 speaks to whether the aircraft commander may make a

forced landing in order to effectuate a disembarkation or a

delivery. Even if the authority to disembark or deliver includes

the authonty to make a forced landing, it is unclear as to

whether the aircraft commander may make a forced landing

prior to making the decision to disembark or deliver Here, it

appears that Captain Swamgan did not make such a decision

until the aircraft landed and he conferred with Ms. Calloway.

Article 6 speaks more generally to the taking of reasonable

measures that are necessary under the circumstances Thus,

Article 6 seems to be the better fit for analyzing Captain

Swanigan’s decision to divert the aircraft

63a

was a reasonable and necessary measure under the

circumstances. Plaintiffs argue — and the majority

agrees — that Captain Swanigan’s diversion may have

been unreasonable because he acted without ade-

quate inquiry into the nature of the first class dis-

turbance, specifically: (1) when Ms. Calloway called

Captain Swanigan to notify him that she was having

a problem with some first class passengers and to

request that security meet the aircraft in Las Vegas,

Captain Swanigan agreed to call security without

ascertaining the true state of events in the first class

cabin; (2) when Ms. Calloway called a second time to

say that she had lost control of the first class cabin,

Captain Swanigan did not seek any explanation

regarding the situation; and (3) at no time did Cap-

tain Swanigan look through the viewing port in the

cockpit door to observe the first class cabin.“

“ So what if under these circumstances Captain Swanigan

did not look through the viewing port? Had he done so, was he

to disregard Ms Calloway’s frantic call and assume all was

well if he saw no commotion? As mentioned, regulations

prevent him from exiting the cockpit. What would the majority

require him to do next — conduct interviews of the crew and

passengers via the interphone and peephole? Moreover, the

Airline Pilots Association, International explained in its

appellate amicus bnef that looking out the port window

requires one of the pilots to unfasten his safety belt, get out of

the seat, and go to the cockpit door, while the other pilot must

put on an oxygen mask and take command of the aircraft Brnef

for the Airline Pilots Association, International as Amicus

Curiae Supporting Appellee at 8, Eid v Alaska Airlines, Inc,

No. 06-16457 (9th Cir. Jan 18, 2007) While this statement is

not part of the trial record, we are not precluded from relying on

(Continued on following page)

64a

But if Captain Swanigan’s belief and action are

to be judged on the basis of the information actually

known to him at the time he formed his belief and

took action — which is what would be required if we

were to properly abide by an arbitrary or capricious

standard and what the courts did in Cordero, New-

man, and Zikry — the relevant inquiry focuses on the

second phone call. It was during that call when

Captain Swanigan “felt that there was a possibility

that my airplane and my crew were in jeopardy” and

decided to land the airplane.” What Captain

Swanigan arguably would have known had he made

further inquiries during the first call is irrelevant to

the analysis. The court need only determine the facts

that were before Captain Swanigan at the time he

formed his belief and took action, and whether, on the

basis of those facts, a reasonable fact finder could

conclude that his belief or action was arbitrary or

capricious. The district court correctly answered this

question in the negative.

At the time Captain Swanigan received the

second phone call, he was already of the belief that

some first class passengers had given his flight crew

our common sense understanding of commercial aircraft in flight

and the duties of pilots Finally, while the Federal Aviation

Administration requires windows on all cockpit doors, there is

no FAA regulation requiring pilots to use them when the pilot

has to act quickly and believes that failure to do so will jeopard-

ize the lives of passengers and crew

‘S Indeed, the first phone call ended with Ms. Calloway

assuring Captain Swanigan, “I think I’ve got 1t under control.”

65a

some problems.” Ms. Calloway “came across very

distraught; almost sounded like she was crying ...

and said, Mike, I’ve lost control of the first-class

cabin.” Captain Swanigan heard “a bunch of yelling

and screaming” unlike anything he had ever heard in

his 26 years with the airline. He confirmed with his

first officer that the noise he was hearing was real,

not imaginary. At that time, the difference in flight

time between Reno and Las Vegas was approximately

25 minutes.

Based on these facts, Captain Swanigan believed

that the passengers referenced in the first phone call

— here, Plaintiffs - had committed or were about to

commit acts jeopardizing safety, good order, and

discipline on board. Captain Swanigan made the

split-second decision that landing the aircraft was

necessary under the circumstances, aware that any

hesitation would soon make it impracticable to make

an emergency landing in Reno. There was no affirma-

tive obligation imposed by the Tokyo Convention on

Captain Swanigan to conduct a personal investiga-

tion given the facts before him, whether in the form of

additional questioning of Ms. Calloway or looking

'* According to Captain Swanigan, “based on the infor-

mation I got, it initially sounded like a minor disturbance... ”

Whether this belief alone warrants calling security to the gate in

Las Vegas 1s not a question before the court. Captain Swanigan’s

belief, based on the representations of Ms. Calloway, that some

first class passengers had caused some problems, 1s but one

factor in his calculus of the situation in the first class cabin at

the time of the second phone call

66a

through the window in the cockpit door. That the

facts may not have been as Captain Swanigan be-

lieved them to be is immaterial, as hindsight and

second-guessing have no place in the analysis.

For these reasons, Captain Swanigan’s diversion

of the aircraft was neither arbitrary nor capricious,

and is protected under the Tokyo Convention as a

matter of law.

The majority, on the other hand, concludes that

the captain’s decision to divert the plane must be

presented before a jury. The panel cites Cordero to

illustrate that this court has held that reasonableness

should always be an issue for the trier of fact, thus

making summary judgment improper. See Majority

Op. at 10974-75. The majority correctly states this

well-established legal principle. Of course, summary

judgment may be precluded in this case only if rea-

sonableness is indeed the proper standard by which

to judge the commander’s actions. I contend that it is

not. Further, I find the panel’s reliance on Cordero

deficient because in that case, this court explicitly

adopted the deferential standard from Williams. See

Cordero, 681 F.2d 669 at 672. While the majority is

correct to point out that the matter in Cordero went

before a jury when this court overruled the district

court’s judgment notwithstanding the verdict, there

was “ample evidence in the trial record from which

the jury might have concluded that [the airline] acted

unreasonably.” Jd. The record in the instant matter is

entirely different from the one in Cordero. More

importantly, we must remember that “unreasonably”

67a

in this context refers to a finding of unreasonableness

under the deferential standard established in WAl-

liams. In other words, even after restricting the

analysis to the “facts and circumstances .. . as known

to the airline at the time it formed its opinion and

made its decision” and granting the captain the right

to make a decision without conducting an “investiga-

tion into a ticket-holder’s potentially dangerous

proclivities,” this court held that the captain in

Cordero may have acted unreasonably. /d. It is not

hard to see why. In Cordero, the plaintiff was accused

of verbal misconduct while the plane was still on the

ground. After the captain for Mexicana Airlines

bizarrely announced that he would be making an

unscheduled stop to pick up more passengers, several

passengers on board the aircraft became upset. The

plaintiff was accused of insulting the captain and

crew and was subsequently not allowed to reboard.

See id. Time was not as pressing — and the conse-

quence of inaction not as significant — as it was for

Captain Swanigan. Captain Swanigan faced a dra-

matically different situation. Here, the plane was

mid-flight and the captain believed he needed to take

action immediately. He received a call from a flight

attendant unlike any other in his 26 years of flight

experience. When examining the facts and circum-

stances as Captain Swanigan knew them at the time

he needed to make his decision, I submit that no

reasonable jury could find that he acted either arbi-

tranly or capriciously, as set by the Tokyo Conven-

tion.

68a

C. The Removal of Plaintiffs from the Air-

craft Is a Triable Issue of Fact.

I concur with the majority that Captain

Swanigan’s decision to remove Plaintiffs from the

aircraft is a triable issue; however, I iterate that

faithfully following the Tokyo Convention as well as

this circuit’s precedent would still require the com-

mander’s actions to be examined under an arbitrary

or capricious standard, not a reasonableness stand-

ard. As I have articulated above, Cordero and New-

man both adopt a deferential standard that restricts

the analysis of the decision to the facts and circum-

stances known to the airline at the time the decision

was made. See Cordero, 681 F.2d 669 at 672; New-

man, 176 F.3d 1128 at 1131.

Cordero, as explained above, involved a passen-

ger who allegedly became angry and insulted the

captain because after takeoff, the captain announced

he would be making an unscheduled stop. The man

was subsequently denied carriage onto the last leg of

that trip. The plaintiff in Newman, a blind woman

suffering from a heart condition, claimed she was

denied entry onto a plane due to the airline’s discrim-

inating against her for suffering from observable

disabilities. The commanders in both Cordero and

Newman made decisions to keep the plaintiffs off

their flights, and the decisions in both cases were

made at a time when the planes were on the ground.

The facts of those cases align more closely with the

disembarkation of the passengers in the instant case;

it is for that reason that I concur with the majority on

69a

this particular issue. But the instant case also in-

cludes facts that were not before the courts in the

aforementioned cases, namely, that the plane was in

the air and the crew had reported that the cabin was

out of control, requiring the pilot to make an emer-

gency landing. If safety is the primary concern — and

This text is long and has been trimmed here. Open the source document for the complete record.