tasha complaint - Daily Airline Filings

BEFORE THE
UNITED STATES OF AMERICA
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
April 28, 2015
___________________________________
TASHA GRANT
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)
Complainant,
)
)
)
v.
)
)
)
SAUDI ARABIAN AIRLINES
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)
Respondent,
)
_________________________________ )
Docket DOT-OST-2015Third Party Complaint
Pursuant to
14 C.F.R. 302.404
(Request for
Enforcement Action)
Communications with respect to this complaint should be sent to:
JEFFREY A. LOVITKY
Attorney at Law
1776 K St., NW, Ste. 800
Washington, D.C. 20006
Tel: (202) 429-3393
Facsimile: (202) 318-4013
Email: [email protected]
Attorney for Complainant
Third party complaint
SUMMARY OF CASE
1.
Same gender sexual relationships constitute serious criminal
offenses under Saudi Arabian law. The complainant is a woman who is
gay. She is interested in booking a flight from New York to Manila on
Saudi Arabian Airlines. The Saudi Arabian Airlines frequently offers the
least expensive service between New York and Manila. This flight has a
10-hour layover in Riyadh, Saudi Arabia. The airline representative
informed complainant that she should refrain from holding hands with
her partner either on the plane or in the Riyadh airport transit area, and
that she should conceal the fact that she is gay.
2.
The paramount obligation of the Secretary of Transportation is to
ensure the safety and security of passengers in air commerce. 49 U.S.C. §
40101(a)(1). The Secretary must obtain assurances that overtly Lesbian,
Gay, Bisexual, and Transgender (LGBT) persons will not be subject to
any form of punishment or detention, or otherwise be subject to any form
of coercion or intimidation, while waiting in the transit areas of Saudi
Arabian airports for their connecting flights. The Secretary must also
obtain assurances that LGBT individuals will not be subject to
harassment or intimidation of any type while on board any Saudi Arabian
Airlines flight from the United States.
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3.
If the Secretary is unable to obtain such assurances, then the
Secretary must pursuant to the authority conferred upon him by 49
U.S.C. § 41304(a), revoke the permit granted to Saudi Arabian Airlines
to provide passenger service from airports in the United States. The
Secretary would effectively be endangering the safety and security of
LGBT persons by failing to take such action.
4.
In the interim and while these proceedings are pending, the
Secretary should immediately order the Saudi Arabian Airlines to inform
the public of any restrictions which are imposed upon LGBT persons. 49
U.S.C. § 41712(a). Failure to provide such warning could endanger the
personal security of overtly LGBT passengers if they were to be
subjected to criminal sanctions under Saudi law.
STATEMENT OF FACTS
5.
Saudi Arabian Airlines is registered as a foreign corporation in the
State of Virginia, whose principal executive office is located at 8081
Wolftrap Road, Suite 200, Vienna, VA. The airline is also registered as a
foreign corporation in the State of New York. According to its website,
Saudi Arabian Airlines maintains offices at the following locations: New
York’s JFK Airport; 11301 W. Irving Park Road, Franklin Park, Il., 5718
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Westheimer Road, Suite 1090, Houston, Texas, and 9841 Airport
Boulevard, Suite 1002, Los Angeles, CA.
6.
Saudi Arabian Airlines is owned by the government of Saudi
Arabia, and must adhere to all laws and regulations issued by the
government of Saudi Arabia.
7.
Three U.S. airports are currently serviced by Saudi Arabian
Airlines for passenger flights, i.e., New York Kennedy, Washington
Dulles, and Los Angeles International. Saudi Arabian Airlines carries
passengers to cities around the world from these three airports, transiting
through either Riyadh or Jeddah.
8.
Transit passengers on Saudi Arabian Airlines are not permitted to
leave the transit area of the airport in Riyadh or Jeddah, unless they have
a visa to enter into Saudi Arabia. U.S. citizens who are transiting through
Saudi Arabia are not required to obtain a visa, unless their scheduled
layovers in Saudi Arabia are 12 hours or longer.
9.
The Saudi Arabian Airlines markets directly to U.S. citizens by
selling tickets on their U.S. website, as well as by selling tickets through
other third party ticket agents, e.g., Expedia, Priceline, etc. These tickets
are marketed both to U.S. passengers whose final destination is Saudi
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Arabia, as well as to passengers whose final destination is outside of
Saudi Arabia and who are merely transiting through Saudi Arabia.
10.
The United States government, through the Export-Import Bank of
the United States, has financed some of the aircraft used by Saudi
Arabian Airlines.
11.
The 2013 U.S. Department of State Report on Human Rights
Practices in Saudi Arabia states as follows:
Under sharia, as interpreted in the country, consensual same-sex
sexual conduct is punishable by death or flogging, depending on
the perceived seriousness of the case. It is illegal for men “to
behave like women” or to wear women’s clothes, and vice versa.
Due to social conventions and potential persecution, lesbian, gay,
bisexual, and transgender organizations did not operate openly,
nor were there gay rights advocacy events of any kind. There were
reports of official societal discrimination, physical violence, and
harassment based on sexual orientation or gender identity in
employment, housing, statelessness, access to education, or health
care. Stigma or intimidation was likely to limit reports of incidents
of abuse. Sexual orientation and gender identity could constitute
the basis for harassment, blackmail, or other actions.
12.
This report is available on the State Department website at
http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrappe
r.
13.
Complainant is a citizen of the United States who resides in the
City of New York.
14.
On April 10, 2015, she spoke to a Saudi Arabian Airlines
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representative by calling 1-800-472-8342. She advised the airline
representative that she was interested in booking a flight on Saudi
Arabian Airlines from New York’s JFK airport to Manila, Philippines.
This flight has an approximately 10-hour layover in Riyadh, Saudi
Arabia.
15.
Complainant advised the representative that she is openly gay, and
that she desires to travel with her partner.
16.
The airline representative informed complainant that she could
experience difficulties if she were to hold hands with her partner either
on the plane or at the airport. The airline representative advised her to
conceal the fact that she is gay. See attached Declaration of Tasha Grant.
LEGAL FRAMEWORK
17.
The Secretary’s paramount and overriding responsibility is to
ensure the safety and security of passengers in air commerce. 49 U.S.C. §
40101(a)(1).
18.
Pursuant to 49 U.S.C. § 40127(a), a foreign air carrier “may not
subject a person in air transportation to discrimination on the basis of
race, color, national origin, religion, sex, or ancestry.”
19.
An air carrier is prohibited by 49 U.S.C. § 41310(a) from
subjecting a person “to unreasonable discrimination” in foreign air
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Third party complaint
transportation. The provisions of 49 U.S. C. § 41310(a) prohibit airlines
from engaging in non-economic forms of discrimination against
individuals. This provision was relied upon by the Secretary in ordering
the cessation of discriminatory conduct against Arab passengers in the
aftermath of 9/11. See Order Denying Motion of American Airlines to
Dismiss, Docket OST-2003-15046, at pp. 2-3.
20.
Pursuant to 49 U.S.C. § 41712(a), the Secretary may bring action
against a foreign air carrier for engaging in an "unfair or deceptive
practice or an unfair method of competition in air transportation."
21.
The First Amendment to the U.S. Constitution, as well as the Due
Process provisions of the Fifth Amendment, provides guarantees against
discrimination by the U.S. government on the basis of sexual orientation.
LEGAL VIOLATIONS ASSERTED AND RELIEF REQUESTED
COUNT 1 – 49 U.S.C. § 40101(a)(1)
22.
The allegations set forth in paragraphs 1-21 above are incorporated
by reference as though fully set forth herein.
23.
The Secretary’s paramount statutory responsibility is to ensure the
safety and security of air passengers. 49 U.S.C. § 40101(a)(1).
24.
Overtly LGBT individuals flying from New York, Los Angeles, or
Washington Dulles may be subject to criminal sanctions while waiting in
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Third party complaint
the airport transit areas of the Riyadh or Jeddah airports for their
connecting flights. Overtly LGBT persons may be subject to harassment
or intimidation while on Saudi Arabian Airlines aircraft when flying from
New York, Washington Dulles, or Los Angeles.
25.
Saudi Arabian Airlines, and/or the Saudi Arabian authorities, must
be required to provide assurances that transit passengers from the United
States will not be subjected to any form of detention, harassment,
coercion, or intimidation due to their sexual orientation while waiting for
their connecting flights in the Riyadh or Jeddah airport transit areas.
Saudi Arabian Airlines, and/or the Saudi Arabian authorities, must also
provide assurances that LGBT passengers will not be subject to any form
of intimidation or harassment while on board any Saudi Arabian Airlines
flight from the United States.
26.
In the event the Saudi Arabian Airlines and/or the Saudi Arabian
authorities are unable to provide such assurances, the Secretary must
nonetheless fulfill his paramount statutory responsibility to ensure the
safety and security of all air passengers. 49 U.S.C. § 40101(a)(1). In
such event, the Secretary must revoke the permit granted to the Saudi
Arabian Airlines to carry passengers from airports in the United States.
49 U.S.C. § 41304(a).
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Third party complaint
COUNT II – VIOLATION OF 49 U.S.C. § 41712(a)
27.
The allegations set forth in paragraphs 1-26 above are incorporated
by reference as though fully set forth herein.
28.
Saudi Arabian Airlines engages in unfair practices and unfair
methods of competition by offering tickets for sale in the United States
without informing the American public of the prohibitions imposed upon
LGBT passengers. Saudi Arabian Airlines has a duty to prominently
display on its U.S. website and in its marketing materials for the U.S.
market that certain restrictions apply to LGBT persons. Saudi Arabian
airlines also has an obligation under 49 U.S.C. § 41712(a) to inform third
party ticket agents such as Expedia and Priceline of these restrictions,
who in turn are obligated to furnish such information to persons buying
tickets through them.
29.
The failure of Saudi Arabian Airlines to provide such information
could endanger the personal security of LGBT passengers if they were to
fly without notice of the restrictions imposed upon them. The failure of
Saudi Arabian Airlines to provide such information also deprives all
other prospective passengers of the right to decide whether they wish to
fly on Saudi Arabian Airlines or to transit through Saudi Arabia in light
of the restrictions imposed upon LGBT persons.
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Third party complaint
30.
The above described actions constitute an "unfair practice or an
unfair method of competition in air transportation" in violation of 49
U.S.C. § 41712(a).
COUNT III – VIOLATION OF 49 U.S.C. § 40127(a)
31.
The allegations set forth in paragraphs 1-30 above are incorporated
by reference as though fully set forth herein.
32.
Saudi Arabian Airlines cannot accept overtly LGBT persons as
passengers due to restrictions imposed by Saudi law. LGBT individuals
may also be subject to harassment, coercion, or intimidation while on the
airplane, and may further be charged with criminal conduct while
transiting through either Riyadh or Jeddah. The above-described
practices constitute a violation of 49 U.S.C. § 40127(a), which prohibits
discrimination on the basis of sex.
COUNT IV – VIOLATION OF 49 U.S.C. § 41310(a)
33.
The allegations set forth in paragraphs 1-32 above are incorporated
by reference as though fully set forth herein.
34.
The above-described practices constitute a violation of 49 U.S.C. §
41310(a), which prohibits unreasonable discrimination in foreign air
transportation.
COUNT V – VIOLATION OF FIRST AND FIFTH AMENDMENT
RIGHTS
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Third party complaint
35.
The allegations set forth in paragraphs 1-34 above are incorporated
by reference as though fully set forth herein.
36.
LGBT persons have the same right as other U.S. citizens to use the
services of Saudi Arabian Airlines and to transit through Saudi Arabian
airports. These services were financed in part by the U.S. government
through Export-Import Bank financing of Saudi Arabian Airlines.
37.
Any order issued by the Secretary of Transportation that
effectively authorizes discrimination on the basis of sexual orientation
would constitute a violation of the First Amendment to the U.S.
Constitution, as well as the Due Process provisions of the Fifth
Amendment, including the prohibition incorporated therein against
denying any person equal protection of the laws.
WHEREFORE, Complainant requests that the Secretary immediately
order the Saudi Arabian Airlines to provide fair warning to the general
public of any restrictions imposed upon LGBT passengers. This order
should be implemented immediately, without waiting for the conclusion
of these proceedings. Complainant further requests that the Secretary find
that Saudi Arabian Airlines is in violation of the above-mentioned laws
and regulations, and further order the termination of the discriminatory
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conduct alleged herein. If compliance with such order is not
forthcoming, then the Secretary must in the interest of passenger safety
revoke the permit granted to Saudi Arabian Airlines to fly passengers
from airports in the United States. 49 U.S.C. § 41304(a).
Respectfully submitted
_______________________
JEFFREY A. LOVITKY
Attorney at Law
1776 K St., NW, Ste. 800
Washington, D.C. 20006
Tel: (202) 429-3393
Facsimile: (202) 318-4013
Email: [email protected]
Attorney for Complainant
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Third party complaint
VERIFICATION
Pursuant to Title 18 United States Code Section 1001, I, Jeffrey A.
Lovitky, in my individual capacity and as the authorized representative of
the pleader, have not in any manner knowingly and willfully falsified,
concealed or failed to disclose any material fact or made any false,
fictitious, or fraudulent statement or knowingly used any documents
which contain such statements in connection with the preparation, filing
or prosecution of the pleading. I understand that an individual who is
found to have violated the provisions of 18 U.S.C. Section 1001 shall be
fined or imprisoned not more than five years, or both.
___________________
Jeffrey A. Lovitky, Esq.
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Third party complaint
CERTIFICATE OF SERVICE
I hereby certify that I have on this 28th day of April 2015 caused
this third-party complaint and declaration to be sent via email and first
class mail postage prepaid to each of the individuals listed below:
Judith Kaleta, Esq.
Deputy General Counsel
U.S. Department of Transportation
1200 New Jersey Avenue, S.E.
Washington D.C. 20590
[email protected]
Blane A. Workie, Esq.
Acting Assistant General Counsel
U.S. Dept. of Transportation
Office of Aviation Enforcement and Proceedings
West Building, 1200 New Jersey Ave. SE, Room W96-322
Washington D.C. 20590-9898
[email protected]
George T. Boggs
Dickstein Shapiro LLP
1825 Eye Street N.W.
Washington, D.C. 20006-5403
Attorney of Record for Saudi Arabian Airlines
[email protected]
_____________________
Jeffrey Lovitky
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