T1A B43 Faxes to Dieter Snell Fdr- Entire Contents- Withdrawal Notice- 265 Pgs and Court Doc Re...

8/14/2019 T1A B43 Faxes to Dieter Snell Fdr- Entire Contents- Withdrawal Notice- 265 Pgs and Court Doc Re Al-Qudhai'Een v

1/7

W I T H D R AWA L N O T I C E

RG: 148Box: 00015 Folder: 0043 Documents

Series: Team 1A Files

Copies: 1 Pages: 265

ACCESS RESTRICTED

The item identified below has been withdrawn from this file:

Folder Title: Faxes to [Dieter Snell] in Saudi Arabia

Document Date:Document Type: FaxSpecial Media:From:To:

Subject: material faxed to Team 1A leader while on foreigntrip to Middle East

In the review of this file this itemwas removed because access to it isrestricted. Restrictions on records in the National Archivesare stated ingeneral and specific record group restriction statements which are availablefor examination.

NND: 341Withdrawn: 08-14-2008 by

RETRIEVAL#: 341 00015 0043 3System DocID: 3799


2/7

P. 1

FILE MODE

802 MEMORY TX

* * COMMUNICATION RESULT REPORT C OCT. 5. 2003 1 2 = 47PM ) * *

TTI

OPTION flDDRESS (GROUP) RESULT

01196614648576 OK!!?!fE__P. 6/6

REfiSONFOR ERRORE-l) HftNG U P O RLINE FPILE-3) NO flNSHER

E-2) BUSYE-4) NO FACSIMILE CONNECTION

homasH. KuiC H A I R

eeH. HamiltonV I C EC H A l f t

ichardBen-Venistc

axCldand

redF. Fielding

mieS. Gorelick

kdeGorton

ohnLehman

imothyJ. Roemet

amesR. Thompson

To:

Fax#:

From:

Date:

FAX COVER SHEET

3/ueLL

Numberof pages (including coversheet); /

hilip D -Zel&owXECUTIVED I R E C TO R


3/7

1 of 1 DOCUMENT

Muhammad Al-Qudhai'een, et al., Plaintiffs, -v- America West A irlines, Inc., et a!.,Defendants.

Case No. C-2-00-1380

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFOHIO, EASTERN DIVISION

267 F. Supp. 2d 841; 2003 U.S. Dist. LEXIS 9964

April 30, 2003, Filed

SUBSEQUENT HISTORY: As Corrected July 9, 2003.

DISPOSITION: Defendant's motion for summaryjudgment granted.

LexisNexis (TM) HEADNOTES - Core Concepts:

COUNSEL: [**1] Fo r MUHAMMAD AL-QUDHAI'EEN, HAMDAM AL-SHALAWI, plaintiffs:Paul Joseph Gattone, Southern Arizona People's LawCenter, Tucson,AZ.

Fo r AMERICA WEST AIRLINES, defendant: Dale ADanneman, John Charles Hinderaker, Lewis & Roca,Phoenix, AZ. Craig Douglas Andrew, Andrew LawOffices LLC - 2, Columbus, OH. For R FIRSTOFFICER R MOO RE, FirstOfficer, R H PATTERSON,ROBERT DECAMPO, CAROL ASADA, LESLIEFRANKLIN, Craig Douglas Andrew Andrew LawOffices LLC - 2, Columbus, OH.

JUDGES: GEORGE C. SMITH, JUDGE, UNITEDSTATES DISTRICT COURT, M agistrate Judge Kemp.

OPINIONBY: GEORG E C. SMITH

OPINION:

[*842] OPINION AND ORDER

Plaintiffs, Muhammad Al-Qudhai'een and HamdanAl-Shalawi, assert federal claims for violation of theircivil rights pursuantto 42 U.S.C. 1981, 42 U.S.C. 1985 (3), and 49 U.S.C.A. 40127.Plaintiffs also assertstate law claims offalse arrest/imprisonment, defamation

and [*843] privacy invasion (portrayal infalse light),intentional infliction of emotional distress, negligence,breach of contract and trespass to chattels, nlDefendants, America West Airlines, Inc., andAmericaWest employ ees Cap tain Robert Patterson, [**2] FirstOfficer Ron Moore, Robert De Campo, Carol Asada, andLeslie Franklin, move for summary judgment. (Doc. 95).Fo r the reasons that follow, the Court GRANTSdefendants'motion fo r summary judgm ent.

nl Plaintiffs claims for breach of duty as a

common carrier and violation of Arizona PublicAccommodations Law were dismissed in theCourt's Opinion and Order dated March23, 2001.(Doc. 30). Plaintiffs also voluntarily dismissedCount V of their complaint for violation of theCivil Rights Act of 1964.

I. FACTS

Plaintiffs are Saudi Arabian citizens residing inArizona with their wives and children on F-l studentvisas I Plaintiffs are studying to receive doctoral degrees.Defendant, America West Airlines, Inc. ("AmericaWest"), is a Delaware corporation doing businessin theUnited States as a common carrier, providing passengerair travel services to the public. Defendants, RobertPatterson, Ron Moore, Robert De Campo, Carol Asada,and Leslie Franklin, are the America West employeeswho served as [**3] pilots and flight attendants onFlight 90.

Plaintiffs planned to attend a series of events andlectures at the Saudi Cultural Attache in Washington,D.C. on November 19, 1999, however,plaintiffs did not


4/7

267 F. Supp. 2d 841, *; 2003 U.S. Dist. LEXIS 9964,**Page 2

make reservations for the flight until after 9:00 p.m. onNovember 18, 1999. On November 19, 1999, plaintiffswere issued boarding passesand boarded America WestFlight 90 from Phoenix, Arizonato Washington, D.C.with a layover in Columbus, Ohio.n2 Prior to departure,plaintiff Al-Qudhai'eenasked flight attendant DeCampoif he could get plaintiff Al-Shalawi to sit in the emptyseat next to him. Plaintiffwas instructed thathe wouldhave to wait until the plane was airborne. IgnoringDeCampo'sinstruction, Al-Qudhai'een decided to get upfrom his seat and tell Al-Shalawi to come sit next tohim. PlaintiffAl-Shalawi then remained in his seat forthe duration of the flight and did not doanything thatdefendantsconsidered suspicious.

n2 Plaintiffs claim that the America Westreservation agent told Mr. Al-Qudhai'een whenhe made the reservation that Flight90 wasnonstop. Mr. Al-Qudhai'eenwas first told thattheflight was stopping in Columbus, Ohioby Mr.Al-Shalawi. Mr. Al-Quadhai'een apparentlyneeded further confirmationof the flight itineraryand asked flight attendant Asada if there wouldbe a stop. When she responded yes,plaintiffbecame irritatedand tense, claiminghe was nottold that there would be a stop.

[**4]

The only other time plaintiff Al-Qudhai'eengot upduring the flight was to use the bathroom. Plaintiffdecided to go to the first class bathroom because peoplewere waiting to use the bathroom at the rear of theairplane. Flight attendant Asada observed Al-Quadhai'een walk straightto the cockpit doorand pull onthe handle. Plaintiffno w denies thathe ever touchedthecockpitdoor. Plaintiff claims thatbefore he even reachedthe first class bathroom, he was told by flight attendantAsada that the first class lavatorywas reserved for firstclass passengers onlyand he would have to use thebathroom at the rear of the plane. Plaintiff used thebathroom at the rear of the airplaneand then returned tohis seat and remained there for the remainder of theflight.

Although plaintiff no w denies that he touched thecockpitdoor or even got close to the first class bathroom,plaintiff did state to the FBI later that day that he mayhave inadvertently touchedthe door [*844] to the flightdeck due to its close proximity to the handle of theforward lavatory. Additionally,a first class passenger,Renato Fernandez, observed Al-Qudh ai'een walk directlyto the cockpitand try to getinto the [**5] cockpit.

After plaintiff used the bathroom at the rear of theplane, flight attendant DeCampo searched the bathroom.

He also searched under the seat originally assigned toM r. Al-Shalawi, but did not findanything.Plaintiffs alsonote that no other passengerson Flight 90 had their seatssearched, nor were the bathrooms searchedafter otherpassengers used them .

Althoughplaintiff claims to have returnedto his seatafter using the bathroom, flight attendant De Campostates that A l-Qudhai'een approachedhim after returningfrom the bathroomand asked a series of questions relatedto the flight. De Camporecalls that plaintiff asked, howlong would the plane be on the ground in Columbus andwhether they would be on the same plane going toWashington, D.C. After some discussion betweentheflight attendants regarding plaintiffs' behavior, theydecided to inform Captain Patterson that plaintiffha dasked similar questions aboutthe flight to two differentflight attendants, plaintiff disobeyedthe flightattendant'sorder to remain in his seat, and plaintiff attemptedto get

into the cockpit. Flight attendantDe Campo alsomentioned toCaptain Patterson thatplaintiffs were Araband [**6] plaintiffs believe that defendants reliedon thisinformation to justify the allegation thatplaintiffs werehijackers.

Captain Patterson was concerned with the report bythe flight attendants and believed thatthe circumstancesposed a security threat to the flight. Therefore, henotified America West's Dispatch and relayed hisconcerns. Captain Patterson providedplaintiffs' namesand seating informationand suggested that when theyarrived they should,be met by security to determine theirintent andexamine their luggage. W henthe plane arrived

in Colum bus, Captain Pattersonwas instructed by airportsecurity to taxi at a remote parking area away from theterminal. When the plane stopped, airport securityboarded the plane, handcuffed plaintiffs and escortedthem off the plane and then interrogated themfor fourhours, while the rest of the passengers were able tocontinue on totheir destinations.After being questionedby the FBI, plaintiffs were advised that they wereno tunder arrest and were free to leave. America Westapologized toplaintiffsand upgraded themto first classfor then-flight to Washington, D.C.

Plaintiffs assert that defendants allegedly relayedfalse inform ation [**7] based on racial stereotypes andthis led to theunlawful harassment and detention of theplaintiffs. Based on these actions, plaintiffs filed theircomplaint alleging defendants violated their civilrights.Defendants believe they are entitled to summaryjudgment on all ofplaintiffs' claims because they havebroad discretionary authority underth e Federal AviationAct ("FAA") torequest investigatoryassistance from lawenforcement authoritiesand/or remove any passenger thepilot determinesmay be inimicalto safety.


5/7


6/7

267 F. Supp. 2d 841, *;2003 U.S. Dist. LEXIS 9964, **Page 4

the FAA gives pilots broad discretionary authority torequest investigatory assistance from law enforcementauthorities [**11] and/or remove any passenger the pilotdecides is or may be inimical to safety. In the alternative,defendants argue that summary judgment is appropriatebecause each of plaintiffs' claims fails to state a cause ofaction and/or fails because plaintiffs have insufficientevidence to substantiate those claims.

A. Immunity under 49 U.S.C. 44902(b)

Defendants contend that Captain Patterson hadauthority to refuse transportation to plaintiff and also theauthority to remove or have law enforcement removeplaintiffs pursuant to 49 U.S.C. 44902(b) and they aretherefore immune from all of plaintiffs claims againstthem. The Federal Aviation Act, 49 U.S.C. 44902(b),states that an air carrier "may refuse to transport apassenger or property the carrier decides is or might be

inimical to safety." "Such a refusal cannot give rise to aclaim for damages under either federal or [state] lawunless the carrier's decision was arbitrary andcapricious." Williams v. Trans World Airlines, 509 F.2d942, 948 (2d Cir. 1975); Schaeffer v. Cavallero, 54 F.Supp. 2d 350, 351 (S.D.N.Y. 1999). [**12]

Plaintiffs correctly assert that airline personnel aregiven broad, but not absolute, discretion to removepassengers for safety reasons. Williams 509 F.2d at 948,sets forth the following test to analyze whether anairline's action of removing passengers was proper:

The test of whether or not the airline

properly exercised its power under [44902] to refuse passage to an applicantor ticket-holder rests upon the facts andcircumstances of the case as known to theairline at the time it formed its opinionand made its decision and whether or notthe opinion and decision were rational andreasonable and not capricious andarbitrary in the light of those facts andcircumstances.

Williams, and other cases applying 44902, confirmthat the statute protects any decision that is not arbitrary

and capricious. See e.g., Schaeffer, 54 F. Supp.2d at 351(Refusal to transport cannot give rise to liability unlessarbitrary and capricious.); Norman v. TWA, 2000 U.S.Dist. LEXIS 14618, 2000 WL 1480367, at *2 (S.D.N.Y.Oct. 6, 2000)(same).

Plaintiffs argue that defendants should not beentitled to immunity because their actions were arbitraryand [**13] capricious. Plaintiffs, in comparing theirbehavior to cases in which immunity under 44902 wasfound, assert that they did not assault or threaten to

assault a passenger or crew member; they were no thostile or disruptive bu t were in fact described as being'calm' when arrested; plaintiffs did not make any remarksthat could be interpreted as threatening a hijacking ormaking a [*847] bomb-threat; nor did plaintiffs possessweapons. Plaintiffs believe that the only allegation of anyattempted breach of security is defendant Asada's claimthat plaintiff Al-Qudhai'een touched the cockpit door,which he contests.

Defendants, however, dispute plaintiffs' argumentthat they did, nothing unusual or out of the ordinary onFlight 90. Defendants assert that plaintiffs' ow ntestimony and undisputed evidence demonstrates that: 1)plaintiffs disobeyed defendant DeCampo's instructionsand changed seats without permission; 2) plaintiff Al-Qudhai'een entered the first class area and proceeded towalk toward the cockpit without obtaining permission; 3)plaintiff Al-Qudhai'een appeared to be 'anxious' when he

asked defendant Asada questions regarding the flight andbecame 'irritated' and 'uneasy' when [**14] informedthat it would be stopping in Columbus, Ohio; and 4)defendant DeCampo considered plaintiff Al-Qudhai'een'squestions about whether, the plane they were currentlyon would also be the one that would travel on toWashington, D.C. to be uncommon for a passenger. Inaddition, while plaintiff Al-Qudhai'een appears to deny itnow, he did admit to the FBI that he "might haveinadvertently touched the door to the flight deck." n4Plaintiffs behavior was reported to Captain Patterson,who made the decision to notify America West and haveplaintiffs' bags subjected to a canine sniff search basedon the facts known to him at that time.

n4 The factual conflict between the partiesregarding whether plaintiff Al-Qudhai'eentouched the door to the cockpit is not materialand the Court does not rely on this dispute inreaching its conclusion. The Court is onlyrequired to assess what was known to CaptainPatterson at the time he made the decision to callAmerica West officials, not to look beyond theflight attendants representations. See Christel v.AM R Corp., 222 F. Supp.2d 335, 340 (E.D.N.Y.2002)

[**15]

The Court must make an "objective assessment" ofthe carrier's decision, which involved "taking intoaccount all the circumstances surrounding the decision,including the (perhaps limited) facts known at the time;the time constraints under which the decision is made;and, not least, the general security climate in which theevents unfold." Dasrath v. Continental Airlines, Inc., 22 8


7/7

267 F. Supp.2d 841, *; 2003 U.S. Dist. LE XIS 9964,**PageS

F. Supp.2d 531, 539 (D.N.J. 2002). Additionally,theCourt in Williams noted that one of the factorscontributingto the decision not to transport plaintiff was"the danger of hijacking in light of those recentlyexperienced [in 1969] by TWA and other airlines." 509F.2d at 945. In this case, plaintiffs even acknowledgethat this incident took place "within weeksof the EgyptAir crash."

Plaintiffs additionally appearto argue that CaptainPatterson should have conducted some investigationprior to radioing fo r assistance when they state "Withoutattempting, to verify Mr. De Campo's allegations byspeaking with plaintiffs or other passengers, CaptainPatterson radioedAmerica West and said he needed tohave plaintiffs' bags "sniffed" for explosives uponarriving in [**16] Columbus." Pis' Mem. Opp'n Defs'Mot. for Summ. J. at 6. Acaptain of an airplane,however, is "entitled withoutfurther inquiry to rely upon

a flight attendant's representations thata conflict with apassenger might distract the flight attendant fromperforming his or her safety-related duties."Christel v.AM R Corp., 222 F. Supp.2d 335, 340 (E.D.N.Y. 2002).In Christel, as the plane approached the runway fo rtakeoff, the flight attendant called the cockpit and toldthe captain there was a disruptive passenger whointerfered with her duties and refused to comply withherinstructions. Up on receiving [*848] this inform ation,the Captain acted withinhis discretion and decided toremove Christel from the plane. Th e Court concludedthat "even if the battle of the egos escalated between[flight attendant] making exaggerated or even falserepresentations to the Captain, the Captain did not havean obligation to leave the cockpit and investigate thetruthfulness of [flight attendant's] statements."Id. at 340.

Taking into account all the circumstances known toCaptain Patterson at the time he made the decision toradio America West for assistance and [**17] the factthat he is entitled to rely on the information providedtohim by his crew despite any exaggerations or falserepresentations, the Court finds as a matter of law thatCaptain Patterson's decisionto remove plaintiffs from theairplane and to request a search of their baggage was notarbitrary or capricious. Defendants are therefore entitledto immunity under 49 U.S.C. 44902(b), and areentitled to summary judgmenton all ofplaintiffs' federalclaims against them.

B. State law claims

Th e Court has granted defendants' motion forsummary judgment on plaintiffs' federal claims. Th eCourt therefore declines to exercise supplementaljurisdiction overplaintiffs' state law claims. It is well

settled that a District Court may decline to exercisesupplemental jurisdiction over statelaw claims once ithas dismissed all claims over which it possessed originaljurisdiction. Saglioccolov. Eagle Ins. Co.,112 F.3d 226,233 (6th Cir. 1997). Indeed, the Sixth Circuit hasrecognized that if all federal claims are dismissed beforetrial, remaining state claims generally should bedismissed. Id.; Taylor v. First of Am. Bank-Wayne, 97 3F.2d 1284, 1287 (6th Cir. 1992). [**18] Therefore,pursuant to 28 U.S.C. 1367(c)(3) and (d), the Courtwill dismiss plaintiffs' state law claims againstdefendants without prejudice.

IV. DISPOSITION

Based on the foregoing, the Court GRANTSdefendants'summary judgment motion.The Clerk shallenter final judgment in favor of defendants,and againstplaintiffs, dismissing all plaintiffs' federal claims withprejudice and dismissing plaintiffs' state claims withoutprejudice.

The Clerk shall remove this casefrom the Court'spending cases and motions lists.

The Clerk shall remove Doc. 95 from the Court'spending motions list.

IT IS SO ORDERED.

GEORGE C.SMITH, JUDGE

UNITEDSTATES DISTRICT COURT

JUDGMENT IN A CIVIL CASE

[] Jury Verdict. This action came beforethe Court for atrial by jury. The issues have been tried and the jury hasrendered its verdict.

[] Decision by Court. This action came to trial orhearing before the Court. Theissues have been tried orheard and a decision has been rendered.

[X] Decision by Court. This action was decided by theCourt withouta trial or hearing.

IT IS ORDERED AND ADJUDGEDthat [**19] pursuant to Order dated April

30 , 2003 Court grants defendants'summary judgment motion. Judgmentfordefendants'. Dismissing all plaintiffs'federal claims with prejudice anddismissing plaintiffs' state claims withoutprejudice.

Date: April 30, 2003

T1A B43 Faxes to Dieter Snell Fdr- Entire Contents- Withdrawal Notice- 265 Pgs and Court Doc Re...

Documents

Transcript of T1A B43 Faxes to Dieter Snell Fdr- Entire Contents- Withdrawal Notice- 265 Pgs and Court Doc Re...