1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Bahig Saliba, No. CV-22-01025-PHX-DLR
10 Plaintiff, ORDER
11 v.
12 Allied Pilots Association,
13 Defendant. 14 15 16 At issue is Defendant Allied Pilots Association’s (“APA”) motion to dismiss 17 Plaintiff Bahig Saliba’s complaint (Doc. 9), which is fully briefed (Docs. 12, 15). For 18 reasons explained below, APA’s motion is granted, and this case is dismissed. 19 I. Background1 20 Saliba is a pilot employed by American Airlines (“American”). APA is the union 21 that represents American’s pilots. Though Saliba is not a member of the union, he is in a 22 bargaining unit represented by APA. 23 During the COVID-19 pandemic, American adopted a policy requiring passengers 24 to wear masks during flights and requiring employees to wear masks while at work. Pilots 25 were required to wear masks while facing passengers but were not required to wear a mask 26 in the flight deck. APA supported American’s mask policy and encouraged its pilots to 27 comply.
28 1 The following background is based on the allegations in Saliba’s complaint (Doc. 1) along with documents properly subject to judicial notice. 1 American’s internal mask policy was only one of many mask mandates that applied 2 to air travelers during the pandemic. For example, Executive Order 13998 imposed a 3 federal mask mandate for air travel. And the Federal Aviation Administration (“FAA”) 4 issued guidance mirroring the executive order. 5 On December 6, 2021, Saliba approached a Transportation Security Administration 6 (“TSA”) checkpoint without a mask. The TSA officer asked him to wear one, but he 7 refused. The TSA officer contacted airport police, and Saliba told the officers that he was 8 exempt from the mask mandate because, in his personal judgment, wearing a mask could 9 compromise his fitness for duty. After a brief detention, Saliba was released, still not 10 wearing a mask. 11 Airport police reported the incident to American, after which Saliba was removed 12 from active flying duty and placed on administrative leave pending disciplinary action. On 13 December 9, 2021, American informed Saliba that it was proposing disciplinary action 14 against him. A hearing on that proposal was held on January 6, 2022. And in the month 15 leading up to hearing, Saliba exchanged numerous emails with APA’s in-house lawyer, 16 Rupa Baskaran. Saliba insisted that APA both represent him at the hearing and argue his 17 preferred defense, which was that Federal Aviation Regulation (“FAR”) § 61.53 gave him 18 unilateral authority to determine whether to wear a mask. Ms. Baskaran explained to Saliba 19 that APA will represent him at the hearing, if he so chooses, but APA would not advance 20 Saliba’s preferred defense because APA agreed with American’s mask policy and 21 disagreed with Saliba’s idiosyncratic reading of FAR § 61.53. Ms. Baskaran also explained 22 to Saliba that, if he does not affirmatively elect APA representation, he may represent 23 himself at the hearing and advance whatever arguments he would like. Saliba never 24 affirmatively elected APA representation 25 During the disciplinary hearing, Saliba was given an opportunity to, and in fact did, 26 argue his FAR § 61.53 defense. He also acknowledged that, on December 6, 2021, he was 27 not wearing a mask at the TSA checkpoint. Ultimately, a written advisory was placed into 28 Saliba’s personnel file regarding his failure to comply with American’s mask policy. With 1 APA’s assistance, Saliba filed a grievance challenging American’s decision to issue a 2 written advisory. Those administrative proceedings remain ongoing. 3 In the meantime, Saliba filed this action against APA, accusing it of violating its 4 statutory duty of fair representation by not opposing American’s mask policy and not 5 advancing Saliba’s preferred defense at this disciplinary hearing. Saliba also accuses APA 6 of violating 18 U.S.C. § 242, which criminalizes certain deprivation of constitutional rights 7 under color of state law, 42 U.S.C. § 1983, which provides civil remedies for the same, and 8 14 C.F.R. § 91.11, an FAA regulation that prohibits interference with an airplane crew 9 member’s performance of their duties. APA has moved to dismiss all claims. 10 II. Legal Standard 11 When analyzing a complaint for failure to state a claim to relief under Federal Rule 12 of Civil Procedure 12(b)(6), the well-pled factual allegations are taken as true and 13 construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 14 1063, 1067 (9th Cir. 2009). Legal conclusions couched as factual allegations are not 15 entitled to the assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), and 16 therefore are insufficient to defeat a motion to dismiss for failure to state a claim, In re 17 Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). Nor is the Court required to accept 18 as true “allegations that contradict matters properly subject to judicial notice,” or that 19 merely are “unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. 20 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). To avoid dismissal, the 21 complaint must plead sufficient facts to state a claim to relief that is plausible on its face. 22 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This plausibility standard “is not 23 akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a 24 defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 25 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s 26 liability, it ‘stops short of the line between possibility and plausibility of entitlement to 27 relief.’” Id. (quoting Twombly, 550 U.S. at 557). 28 1 III. Analysis 2 Saliba’s claims under §§ 242, 1983, and 91.11 fail as a matter of law. Section 242 3 is a criminal statute that does not provide a private civil right of action. See Allen v. Gold 4 Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006). Section 1983 provides a civil right 5 of action, but only against those acting under color of state law. APA is a union, and 6 generally “[u]nions are not state actors; they are private actors.” Hallinan v. Fraternal 7 Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 815 (7th Cir. 2009). Although there 8 are some limited circumstances under which the conduct of an otherwise private actor may 9 be deemed state action, see Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003), none 10 of those limited circumstances are present here. And the Ninth Circuit has held that the 11 FAA does not create an implied right of action. G.S. Rasmussen & Associates, Inc. v. 12 Kalitta Flying Service, Inc., 958 F.2d 896, 902 (9th Cir.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Bahig Saliba, No. CV-22-01025-PHX-DLR
10 Plaintiff, ORDER
11 v.
12 Allied Pilots Association,
13 Defendant. 14 15 16 At issue is Defendant Allied Pilots Association’s (“APA”) motion to dismiss 17 Plaintiff Bahig Saliba’s complaint (Doc. 9), which is fully briefed (Docs. 12, 15). For 18 reasons explained below, APA’s motion is granted, and this case is dismissed. 19 I. Background1 20 Saliba is a pilot employed by American Airlines (“American”). APA is the union 21 that represents American’s pilots. Though Saliba is not a member of the union, he is in a 22 bargaining unit represented by APA. 23 During the COVID-19 pandemic, American adopted a policy requiring passengers 24 to wear masks during flights and requiring employees to wear masks while at work. Pilots 25 were required to wear masks while facing passengers but were not required to wear a mask 26 in the flight deck. APA supported American’s mask policy and encouraged its pilots to 27 comply.
28 1 The following background is based on the allegations in Saliba’s complaint (Doc. 1) along with documents properly subject to judicial notice. 1 American’s internal mask policy was only one of many mask mandates that applied 2 to air travelers during the pandemic. For example, Executive Order 13998 imposed a 3 federal mask mandate for air travel. And the Federal Aviation Administration (“FAA”) 4 issued guidance mirroring the executive order. 5 On December 6, 2021, Saliba approached a Transportation Security Administration 6 (“TSA”) checkpoint without a mask. The TSA officer asked him to wear one, but he 7 refused. The TSA officer contacted airport police, and Saliba told the officers that he was 8 exempt from the mask mandate because, in his personal judgment, wearing a mask could 9 compromise his fitness for duty. After a brief detention, Saliba was released, still not 10 wearing a mask. 11 Airport police reported the incident to American, after which Saliba was removed 12 from active flying duty and placed on administrative leave pending disciplinary action. On 13 December 9, 2021, American informed Saliba that it was proposing disciplinary action 14 against him. A hearing on that proposal was held on January 6, 2022. And in the month 15 leading up to hearing, Saliba exchanged numerous emails with APA’s in-house lawyer, 16 Rupa Baskaran. Saliba insisted that APA both represent him at the hearing and argue his 17 preferred defense, which was that Federal Aviation Regulation (“FAR”) § 61.53 gave him 18 unilateral authority to determine whether to wear a mask. Ms. Baskaran explained to Saliba 19 that APA will represent him at the hearing, if he so chooses, but APA would not advance 20 Saliba’s preferred defense because APA agreed with American’s mask policy and 21 disagreed with Saliba’s idiosyncratic reading of FAR § 61.53. Ms. Baskaran also explained 22 to Saliba that, if he does not affirmatively elect APA representation, he may represent 23 himself at the hearing and advance whatever arguments he would like. Saliba never 24 affirmatively elected APA representation 25 During the disciplinary hearing, Saliba was given an opportunity to, and in fact did, 26 argue his FAR § 61.53 defense. He also acknowledged that, on December 6, 2021, he was 27 not wearing a mask at the TSA checkpoint. Ultimately, a written advisory was placed into 28 Saliba’s personnel file regarding his failure to comply with American’s mask policy. With 1 APA’s assistance, Saliba filed a grievance challenging American’s decision to issue a 2 written advisory. Those administrative proceedings remain ongoing. 3 In the meantime, Saliba filed this action against APA, accusing it of violating its 4 statutory duty of fair representation by not opposing American’s mask policy and not 5 advancing Saliba’s preferred defense at this disciplinary hearing. Saliba also accuses APA 6 of violating 18 U.S.C. § 242, which criminalizes certain deprivation of constitutional rights 7 under color of state law, 42 U.S.C. § 1983, which provides civil remedies for the same, and 8 14 C.F.R. § 91.11, an FAA regulation that prohibits interference with an airplane crew 9 member’s performance of their duties. APA has moved to dismiss all claims. 10 II. Legal Standard 11 When analyzing a complaint for failure to state a claim to relief under Federal Rule 12 of Civil Procedure 12(b)(6), the well-pled factual allegations are taken as true and 13 construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 14 1063, 1067 (9th Cir. 2009). Legal conclusions couched as factual allegations are not 15 entitled to the assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), and 16 therefore are insufficient to defeat a motion to dismiss for failure to state a claim, In re 17 Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). Nor is the Court required to accept 18 as true “allegations that contradict matters properly subject to judicial notice,” or that 19 merely are “unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. 20 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). To avoid dismissal, the 21 complaint must plead sufficient facts to state a claim to relief that is plausible on its face. 22 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This plausibility standard “is not 23 akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a 24 defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 25 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s 26 liability, it ‘stops short of the line between possibility and plausibility of entitlement to 27 relief.’” Id. (quoting Twombly, 550 U.S. at 557). 28 1 III. Analysis 2 Saliba’s claims under §§ 242, 1983, and 91.11 fail as a matter of law. Section 242 3 is a criminal statute that does not provide a private civil right of action. See Allen v. Gold 4 Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006). Section 1983 provides a civil right 5 of action, but only against those acting under color of state law. APA is a union, and 6 generally “[u]nions are not state actors; they are private actors.” Hallinan v. Fraternal 7 Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 815 (7th Cir. 2009). Although there 8 are some limited circumstances under which the conduct of an otherwise private actor may 9 be deemed state action, see Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003), none 10 of those limited circumstances are present here. And the Ninth Circuit has held that the 11 FAA does not create an implied right of action. G.S. Rasmussen & Associates, Inc. v. 12 Kalitta Flying Service, Inc., 958 F.2d 896, 902 (9th Cir. 1992) (“[W]e have previously held 13 that there is no implied private right of action under the Federal Aviation Act. We reach 14 the same conclusion . . . where plaintiff's claim is grounded in the regulations rather than 15 the statute itself.” (citation omitted)). 16 This leaves Saliba’s duty-of-fair-representation claim. A union has a duty to fairly 17 represent all employees within the bargaining unit. Demetris v. TWU, 862 F.3d 799, 804- 18 05 (9th Cir. 2017). A union breaches this duty when it acts arbitrarily, discriminatorily, or 19 in bad faith. Id. at 805. This standard is highly deferential to the union, especially when the 20 challenged conduct involves a union’s judgment. Id. This is so because unions must 21 balance the interests of individuals and of the group as whole but pursuing every 22 individual’s goals would make it impossible to effectively pursue the broader goals of the 23 entire group. Therefore, absent discrimination or bad faith, courts defer to a union’s 24 judgment because “[a union] must be able to focus on the needs of its whole membership 25 without undue fear of lawsuits from individual members.” Herring v. Delta Air Lines, Inc., 26 894 F.2d 1020, 1023 (9th Cir. 1990). 27 Here, it is implausible that APA acted arbitrarily, discriminatorily, or in bad faith 28 when it refused to opposed American’s mask policy or to advance Saliba’s idiosyncratic 1 view of FAA regulations. American’s mask policy was generally consistent with those 2 adopted by the federal government, as well as many state and local governments. It also 3 was based on a scientific consensus that wearing masks helps reduce the transmission of 4 COVID-19. Saliba might disagree with the science, but his disagreement does not make 5 APA’s endorsement of American’s mask policy arbitrary, discriminatory, or in bad faith. 6 Likewise, it is implausible that APA’s refusal to advance Saliba’s preferred defense 7 at his disciplinary hearing was arbitrary, discriminatory, or in bad faith. The two merely 8 had a disagreement over the proper reading of the relevant FAA regulations. These types 9 of differences of opinion are insufficient to support a breach of the duty of fair 10 representation claims. See Conkle v. Jeong, 73 F.3d 909, 915-16 (9th Cir. 1995). This is 11 especially true here, where Saliba’s interpretation of FAR § 61.53 is idiosyncratic and 12 almost certainly incorrect. That regulation provides, in relevant part: 13 [N]o person who holds a medical certificate issued under part 67 of this chapter may act as pilot in command, or in any other 14 capacity as a required pilot flight crewmember, while that person: 15 (1) Knows or has reason to know of any medical condition that 16 would make the person unable to meet the requirements for the medical certificate necessary for the pilot operation; or 17 (2) Is taking medication or receiving other treatment for a 18 medical condition that results in the person being unable to meet the requirements for the medical certificate necessary for 19 the pilot operation. 20 14 C.F.R. § 61.53. Nothing in this section even arguably gives Saliba the unilateral 21 authority to decide whether to comply with a mask mandate policy, especially when that 22 policy did not require him to wear a mask while actually piloting the airplane from the 23 flight deck. 24 / / / 25 / / / 26 / / / 27 28 1 For these reasons, 2 IT IS ORDERED that APA’s motion to dismiss (Doc. 9) is GRANTED. The Clerk 3 || is directed to terminate this action. 4 Dated this 27th day of March, 2023. 5 Ls Ue 7 _- {UO 8 States Dictric Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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