Petition for Writ of Certiorari — Weiss v. El Al Israel Airlines (No. 08-1259)

Supreme Court brief2008

Ask Donna

What actually matters in this document.

Text

- Supreme Court, U.S.

\W \) FILED

“No. 34259 APR 10 2009

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

TOBIAS WEISS, GERTRUDE O. WEISS,

Petitioners,

EL AL ISRAEL AIRLINES,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

TOBIAS WEISS

Counsel of Record

LAW OFFICE OF TOBIAS WEISS, ESQ.

1766 Bedford Street

Stamford, Connecticut 06905

(203) 348-6196

Petitioner Pro Se and Attorney

for Petitioner Gertrude O. Weiss

QUESTIONS PRESENTED

Is a common-law tort claim, for physical abusive

treatment by an airline of passengers at the airline

terminal, preempted by the Airline Deregulation Act,

49 U.S.C. § 41713(b)(1), which prohibits a state or

any of its subdivisions from enacting or enforcing

any provision “related to a price, route, or service”

of an air carrier.

More pointedly, does that statutory prohibition of

state action regarding airline “service”, prohibit the

common-law tort claim.

TABLE OF CONTENTS

QUESTIONS PRED... cc ccc cece ccc ccceeee

TABLE OF AU TRRCPI elec csccccscccseesccsescss

STATEMENT OF THE CASE ....................

THEE, CORR Re tana cesicscsee.

REASONS FOR GRANTING THIS

PETITION AND REVIEW BY

THE SUPREME COURT. ..........2.2-s000-.

CON CLUGI ee asnccpues east sets deswececess.

APPENDIX

Summary Order of the United States Court

of Appeals, Second Circuit,

dated February 13, 2009...............

Final Order of Dismissal of the United

States District Court, Southern

District of New York,

dated August 31, 2007..................

Opinion and Order of the United States

District Court, Southern District of

New York, dated July 28, 2006........

Complaint, dated December 14, 2004.....

Answer of El Al, dated January 18, 2005.

lil

TABLE OF AUTHORITIES

Cases:

Taj Mahal Travel, Inc. v.

Delta Airlines, Inc.,

164 ¥.30 166 (3d Cit. 1908) ...........55000

Charas v. Trans World Airlines, Inc.,

160 F.3d 1259 (9th Cir. (1998)).............

Northwest Airlines, Inc. v. Duncan,

208 F.3d 1112 (9th Cir. 2000)

dissenting opinion re denial

eg gg Fe anUn Pan amen opt live ee ee area

Statute:

Airline Deregulation Act,

Oe Rice Ea, BE TO EF ok ens tides eceneuceues

PETITION FOR A WRIT OF CERTIORARI

Petitioners Tobias Weiss and Gertrude O. Weiss,

husband and wife, respectfully petition for a writ of

certiorari to review the judgment of the United

States Court of Appeals for the Second Circuit in

this case.

OPINION BELOW

The order of the United States Court of Appeals for

the Second Circuit is reported at 2009 WL 367559

(C.A.2 (N.Y.)), and is reproduced in the Appendix

annexed hereto.

STATEMENT OF JURISDICTION

The order of the United States Court of Appeals

for the Second Circuit was entered on February 13,

2009. This petition is being filed within ninety days

of that order. The jurisdiction of this court is

invoked pursuant to 28 U.S.C. § 1254(1).

STATEMENT OF THE CASE

The tort claim involved in this case is set forth in

the Second Count of the complaint. It is NOT based

on the “bumping” or failure to provide the air trans-

portation. The tort claim is based on abusive treat-

ment by the airline at the terminal after it failed to

provide any air transportation for plaintiffs during a

period of two days even though they had tickets and

reserved seats.

THE COMPLAINT

The plaintiffs bought two tickets, with confirmed

reserved seats, for transportation by the defendant

airline from New York City (Kennedy) to Jerusalem

at a cost of $2,434. The scheduled departure was on

March 31, 2004 at 6:30 P.M.

Plaintiffs arrived at defendant’s terminal at

Kennedy at 5:28 P.M. on March 31, 2004, and were

cleared for boarding by the airline security. They

were then told that their seats had been given to

other persons, and they were denied boarding on the

plane for which they had tickets.

The reason for the airline’s exclusion of the plain-

tiffs from their ticketed flight is that the airline

deliberately sold more tickets for that flight than it

had seats on the plane, deliberately overbooking the

flight, and then engaged in the practice of “bumping”

passengers from the flight even though they had

reserved seats on it.

The airline then induced the plaintiffs to remain

for two days at the airline terminal. They were put

on standby status by the airline, and were otherwise

induced by the airline to remain there at its terminal

until 11:30 in the evening on March 31 and April 1,

2004. The airline nevertheless refused to give any

transportation to plaintiffs during those two days.

Plaintiffs then bought the needed transportation

to Israel on British Airways.

The airline never informed plaintiffs that it

engaged in overbooking and bumping when they

bought their reserved seat tickets for that flight. No

notice was included with the tickets that the flight

would be overbooked and there would be bumping.

The airline failed to display at its terminal any

notice of its overbooking practices, its procedure

for loss of seating, or for compensation to the

affected passengers, and failed to give required

statements to plaintiffs.

Nor was any reimbursement made to plaintiffs for

the cost of the tickets for which plaintiffs were

refused transportation.

In the Second Count, a common law cause of

action is alleged for physical and emotional suffer-

ing inflicted by the airline during the two days it

induced plaintiffs to remain at its terminal. For two

days, the airline had plaintiffs move around repeat-

edly in trying to deal with airline employees to give

them transportation to Jerusalem. The attitude of

the airline and its employees toward plaintiffs

throughout those two days was indifferent, shunting

plaintiffs and their baggage from place to place just

to get rid of them. The result of those two days of

abusive treatment and hardship, imposed by the air-

line on plaintiffs, was a failure of the airline to fur-

nish any transportation to plaintiffs.

REASONS FOR GRANTING THIS PETITION

AND REVIEW BY THE SUPREME COURT

This case and its questions of law should be

reviewed and settled by the Supreme Court because

there is a conflict in the rulings of the courts of

appeals, and that conflict should be resolved. Fur-

ther, there is involved the scope and meaning of a

federal statute (§ 105 of the Airline Deregulation

Act, 49 U.S.C. § 41713(b)(1)) which is important for

airline transportation.

The Court of Appeals, in this case, in its opinion

expressly recognized that it was in conflict with the

position of the Court of Appeals for the Third Cir-

cuit and in conflict with the Court of Appeals for the

Ninth Circuit, citing Taj Mahal Travel, Inc. v. Delta

Airlines Inc., 164 F.3d 186 (3d Cir. 1998) and Charas

v. Trans World Airlines, Inc., 160 F.3d 1259 (9th Cir.

(1998).

We further respectfully rely on the following opin-

ion of Justice O’Connor (at 531 U.S. 1058), joined by

Chief Justice Rehnquist and Justice Thomas, in dis-

senting from the denial of certiorari in Northwest

Airlines, Inc. v. Duncan, 208 F.3d 1112 (9th Cir.

2000):

“JUSTICE O’CONNOR, with whom THE CHIEF

JUSTICE and JUSTICE THOMAS join, dissenting.

“The petition for a writ of certiorari in this

case presents an important issue that has

divided the Courts of Appeals: the meaning of

the term “service” in the portion of the Airline

Deregulation Act of 1978 (ADA) that pre-empts

any state law “related a price, route, or service

of an air carrier.” 49 U.S.C. § 41713(b)(1). I

would grant the petition to resolve this issue

and bring needed certainty to this area of the

law.

“We have addressed the scope of the ADA’s

pre-emption provision on two prior occasions.

In Morales v. Trans World Airlines, Inc., 504

U.S. 374, 383 (1992), we noted the “broad pre-

emptive purpose” of the ADA. And while we

have never directly addressed the definition of

“service” within the meaning of § 41713(b)(1),

we have suggested that this term encompasses

“access to flights and class-of-service upgrades.”

American Airlines, Inc. v. Wolens, 513 U.S. 219,

226 (1995). The Courts of Appeals, however,

have taken directly conflicting positions on this

question of statutory interpretation.

“The Ninth Circuit below, adhering to its deci-

sion in Charas v. TWA, 160 F. 3d 1259 (1998) (en

banc), held that the term “service” encompasses

“the prices, schedules, origins and destinations

of the point-to-point transportation of passen-

gers, cargo, or mail,’” but not the “ ‘provision of

in-flight beverages, personal assistance to pas-

sengers, the handling of luggage, and similar

amenities.’” 208 F. 3d 1112, 1114-1115 (2000)

(quoting Charas, supra, at 1261). The Third Cir-

cuit has expressly agreed with this approach.

Taj Mahal Travel, Inc. v. Delta Airlines Inc.,

164 F. 3d 186, 194 (1998). In contrast, three

Courts of Appeals have adopted a much broader

definition. See Hodges v. Delta Airlines, Inc.,

44 F. 3d 334, 336 (CA5 1995) (en banc) (defining

“service” in terms of the “ ‘[contractual] features

of air transportation,’” including “ ‘ticketing,

boarding procedures, provision of food and

drink, and baggage handling’”); Smith v.

Comair, Inc., 134 F. 3d 254, 259 (CA4 1998)

(“Undoubtedly, boarding procedures are a ser-

vice rendered by an airline”) (citing Hodges,

supra, at 336); Travel All Over The World, Inc.

v. Kingdom of Saudi Arabia, 73 F. 3d 1423,

1433 (CA7 1996) (adopting Hodges definition).

See also Chukwu v. Board of Directors British

Airways, 889 F. Supp. 12, 13 (Mass. 1995), aff'd

mem., 101 F. 3d 106 (CAI 1996) (same).

“Given these opposing interpretations, I

believe we should hear this case. The legal issue

is an important one, well suited for resolution

by this Court. The two leading cases, Charas

and Hodges, are both the product of en banc

consideration. They have fully explored the rel-

evant considerations, including the language

and history of the ADA and its pre-emption

clause, as well as the policies supporting the

possible interpretations of the term “service.”

Compare Charas, supra, at 1262-1266, with

Hodges, supra, at 336-339.

“Resolution of this question would provide

needed certainty to airline companies. While

this case involves the potential pre-emption of a

state law personal-injury claim based on an air-

line’s smoking policy, the legal principle at stake

has ramifications for a host of other tort actions

against airlines. See, e.g., Smith, supra (false

imprisonment and intentional infliction of emo-

tional distress); Travel All Over The World,

supra (defamation). Because airline companies

operate across state lines, the divergent pre-

emption rules formulated by the Courts of

Appeals currently operate to expose the airlines

to inconsistent state regulations. Cf. Morales,

supra, at 378 (the ADA’s pre-emption provision

is intended “[t]o ensure that the States would

not undo federal deregulation with regulation of

their own”).

“A decision from this Court would provide

needed clarification on this discrete and impor-

tant issue of statutory interpretation. Accord-

ingly, | respectfully dissent from the denial of

the petition for certiorari.”

CONCLUSION

For the foregoing reasons, review by the Supreme

Court is respectfully requested.

Respectfully submitted,