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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2011
- **Citation:** 563 U.S. 974

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0883%3A1. Public record. Not legal advice.