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«FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT  AZZA EID; AMRE R. GINENA; NAHID I. GINENA; REDA A. GINENA; SABRINA KOBERT; ...»

-- [ Page 1 ] --

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

No. 06-16457

MANSOUR; NAZMI M. NAZMI; M.

 D.C. No.

MAGDY H. RASIKH; HEBA NAZMI,

CV-04-01304-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 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 *The Honorable S. James Otero, United States District Judge for the Central District of California, sitting by designation.

EID v. ALASKA AIRLINES 10961

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 defendantappellee.

Stephen B. Mashney, Mashney Law Offices, Anaheim, 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, International.

Robert McGeorge and Poolust N Udai Fulena, International Air Transport Association, Washington, D.C., and Andrew J.

10962 EID v. ALASKA AIRLINES 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, Pasadena, California, for amicus curiae Arab Republic of Egypt.

–  –  –

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.

–  –  –

These are the facts as plaintiffs allege them: On September 29, 2003, a group of Egyptian businessmen, their wives and a Brazilian fiancée, boarded Alaska Airlines Flight 694 in Vancouver, British Columbia. Their journey had started a few days earlier in Cairo and they were headed for a convention 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.

EID v. ALASKA AIRLINES 10963 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 2, 5. According to Shealy, who provides the only independent account of the incident, the flight attendants treated the Egyptians badly. It started “[e]arly 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 question. I was surprised by her obvious reaction....” Id. at 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 attendant, Lee Anne Maykuth, asked him to sit because standing was not permitted right outside the cockpit. 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.”1 Shealy Declaration at 6.





According to Shealy, “[i]t was obvious from body language that [Duus]... was not in a good mood from the beginning As Ginena describes it: “Suddenly another flight attendant 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 11.

10964 EID v. ALASKA AIRLINES of the flight.” Id. at 5. “[S]he had been glaring at [the Egyptian] group every time she passed through the first class cabin.

She wasn’t looking at me like that.” Id. at 6. Duus claims that at the beginning of the flight Reda Ginena made “a put down to [my] intelligence and my roll [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 Discharge.

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.”2 Shealy Declaration at 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 Disturbance Report; it was designed to be filled out by flight crew, not passengers.3 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 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 Airlines’s Flight Attendant Manual calls for notification of the captain and his concurrence before a written 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, is to be given to the passengers. 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 is nothing in the manual or elsewhere that requires passengers to fill out anything.

EID v. ALASKA AIRLINES 10965 so.4 In response, Duus “went 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.”5 Id. at 15. She “saw no

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 is to be filled out by the flight attendant and the captain, not 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 simply 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 it 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 literally screamed into the phone that she had lost control of the first class cabin and that the aircraft had to be landed immediately.

Ginena Declaration at 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 communication was impossible. My son also said nothing to Ms. Duus after telling me not to sign anything immediately after receiving his own copy of the customer disturbance form.

Ginena Declaration at 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 10966 EID v. ALASKA AIRLINES 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 passengers. 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 8.

Mrs. Ginena then told Duus that she couldn’t treat passengers this way, to which Duus responded “I 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 I’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

96.6 Captain Michel Swanigan and First Officer James Robahead 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. Everyone 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 ballistic,” but the flight attendant was yelling and irrational.

Rasikh Declaration at 12.

There is a dispute as to which flight attendant called the cockpit, with the passengers (including Shealy) saying it was Duus, and the airline crew insisting it was Callaway.

EID v. ALASKA AIRLINES 10967 erts 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 disembarked.

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 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; I’ll do it.” Swanigan Deposition at 116-20.7 Nevertheless, the police and TSA quickly cleared plaintiffs to continue flying. They then asked Swanigan to let them reboard Flight 694 to its destination 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.



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