BEFORE THE UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY JULY 13, 2015 CHRISTOPHER NETHERY ) ) Complainant, ) ) ) v. )Docket DOT-OST-2015- ) ) Third Party SAUDI ARABIAN AIRLINES ) Complaint Pursuant to ) 14 C.F.R. 302.404 Respondent, ) (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: Lovitky@aol.com Attorney for Complainant
INTRODUCTION 1. The complainant is a citizen of the United States. Complainant adheres to the Christian faith, and believes that wearing a cross necklace or a cross shirt is an appropriate way to celebrate the Christian religion. 2. Complainant was advised by the Saudi Arabian Airlines (Saudia) reservations office not to wear a cross-necklace or a cross-shirt while on board the aircraft. 3. Saudia s stated policy is to prohibit the visible wearing of Christian religious symbols when doing so would be deemed disruptive. See Parker v. Saudi Arabian Airlines, Case No. DOT-OST-2015-0093, Answer of Saudi Arabian Airlines, p. 2. This policy is inconsistent with applicable legal requirements. Complainant has an unqualified and unconditional right to wear a cross necklace or a cross shirt while on board the aircraft. The wearing of such religious articles does not present any conceivable danger to the aircraft or to other passengers. Saudia further discriminates against Christian passengers because it does not impose similar limitations on the wearing of Islamic religious garments on board the aircraft, such as burqas or hijabs. 1
4. Complainant further alleges that he may be subject to detention or other official punishment if he wears his cross necklace or cross-shirt while transiting through Saudi airports. STATEMENT OF FACTS 5. Complainant is a citizen of the United States, residing in Naples, Florida. 6. Saudia 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, Saudia maintains offices at the following locations: New York s JFK Airport; 11301 W. Irving Park Road, Franklin Park, Il., 5718 Westheimer Road, Suite 1090, Houston, Texas, and 9841 Airport Boulevard, Suite 1002, Los Angeles, CA. 7. Saudia is owned by and is an instrumentality of the government of Saudi Arabia, and must adhere to all laws and regulations issued by the government of Saudi Arabia. The policies of the Saudi government concerning such matters as the possession of non-islamic religious articles are also the policy of Saudia. 2
8. 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. Saudia carries passengers to cities around the world from these three airports, transiting through either Riyadh or Jeddah. 9. Transit passengers on Saudia 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. 10. The U.S. State Department website states as follows: Air travelers may find lower-cost tickets between countries that include long layovers in Saudi airports. Be advised that Saudi Arabia does not grant transit visas to air travelers, so any layover will be spent entirely in the airport. http://travel.state.gov/content/passports/english/country/saudiarabia.html. 11. Saudia 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 Arabia, as well as to 3
passengers whose final destination is outside of Saudi Arabia and who are merely transiting through Saudi Arabia. 12. The United States government, through the Export-Import Bank of the United States, has financed some of the aircraft used by Saudia. 13. On July 3, 2015, complainant contacted the Saudi Arabian Airlines in connection with their flight from Washington Dulles airport to Mumbai, India, which has an 11 hour and 50 minute layover in Riyadh, Saudi Arabia. This flight departs from Washington Dulles on July 25, 2015, and arrives at Mumbai on July 27, 2015. 14. Complainant asked the representative whether he would be permitted to wear a cross necklace and a cross-shirt on board the airplane for the purpose of celebrating his Christian beliefs. A cross-shirt is a plain black cotton shirt with an image of a plain white cross on the front. A cross necklace is a plain silver necklace with a plain silver cross on the front. 15. After checking with his supervisor, the representative came back on the line and advised complainant that there could be a problem if he were to wear these articles on board the aircraft, and that it would be better if he did not wear these articles on board the aircraft. 4
16. Saudia allows passengers to wear burqas aboard the aircraft. Saudia allows passengers to wear hijabs aboard the aircraft. 17. Saudia plays an Islamic religious prayer in Arabic over the aircraft s public address system prior to take-off. This is a prayer that is commonly said by adherents to the Muslim faith upon traveling. This prayer is played over the same system used to communicate passenger safety announcements. As such, a passenger is unable to turn off the prayer if s/he does not wish to listen to it. 18. There is a separate designated prayer area on Saudia s flights from the United States that is intended for Islamic prayer. A prayer dial is placed in this area that shows the direction of Mecca. 19. Saudia s in flight entertainment system offers numerous channels devoted to recitations from the Koran, interpretations of the Koran, readings of Hadiths, programs explaining the rituals of Hajj and Umrah, and other programming of a purely Islamic religious nature. 20. Saudia s in-flight entertainment system offers no similar audio or video programs devoted to the teachings of Jesus Christ. 21. Complainant may be required to hide or remove his cross necklace or his cross shirt, if the visible display of such objects were to disturb other passengers. 5
22. Complainant may be required to hide or remove his cross necklace or his cross shirt, if the visible display of such objects were to disturb members of the crew. 23. Complainant may be required by Saudi governmental authorities to hide or remove his cross necklace or his cross shirt, if he wears these objects in the transit zones of the Riyadh or Jeddah airports while waiting for his connecting flight. Complainant may further be subject to criminal charges, if he wears his cross necklace or cross-shirt in the transit zones of the Riyadh or Jeddah airports. 24. Under Saudi Arabian law, the public display of non-islamic religious articles is forbidden. As noted by the State Department, the Saudi government prohibits the public practice of religions other than Islam. Non-Muslims suspected of violating these restrictions have been jailed. Even church services in private homes have been raided, and participants have been jailed. The State Department website further states that Persons violating Saudi Arabian laws, even unknowingly, may be expelled, arrested, imprisoned, subject to physical punishments, or even executed. http://travel.state.gov/content/passports/english/country/saudi-arabia.html 6
LEGAL FRAMEWORK 25. Any person may file a formal complaint alleging violations of Subtitle VII of Title 49 of the United States Code (Transportation). 14 C.F.R. 302.404(a); 14 C.F.R. 302.2. There are no standing requirements governing who may file a formal complaint pursuant to 14 C.F.R. 302.404. The person filing a complaint need not be a passenger or a prospective passenger, nor need that person have suffered any actual or prospective harm. The Office of Aviation Enforcement and Proceedings entertains all complaints filed by any person which raise issues germane to the public interest, regardless of who the complainant may be, or the nature of the complainant s interest. Electronic Privacy Information Center v. Northwest Airlines, Order 2004-9-13, OST-2004-16939-10, September 10, 2004; American Society of Travel Agents v. United Airlines et al., Order 2002-9-2, Docket OST-99-6410, Docket OST-02-12004, Sept., 4, 2002; Association of Retail Travel Agents v. Continental Airlines et al., Order 2000-10-8; Docket OST 99-6691, October 11, 2000. 26. 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). 7
27. 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. 28. An air carrier is prohibited by 49 U.S.C. 41310(a) from subjecting a person to unreasonable discrimination in foreign air 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, notwithstanding the airline s objection that the statute was aimed at rate discrimination. See Order Denying Motion of American Airlines to Dismiss, Docket OST-2003-15046, at pp. 2-3. 29. 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." Conduct may constitute an unfair practice if it violates public policy, is immoral, or causes substantial consumer injury not offset by any countervailing benefits. Electronic Privacy Information Center v. Northwest Airlines, Order 2004-9-13, OST-2004-16939-10, September 10, 2004. 8
30. The First Amendment to the U.S. Constitution, as well as the Due Process provisions of the Fifth Amendment, provides guarantees against unreasonable discrimination by the federal government, as well as against governmental action that favors one religion over another. LEGAL VIOLATIONS ASSERTED AND RELIEF REQUESTED COUNT I VIOLATION OF 49 U.S.C. 40127(a); 41310(a) AND 41712(a) 31. The allegations set forth in paragraphs 1-30 above are incorporated by reference as though fully set forth herein. 32. Saudia is using its telephone reservations process for the purpose of discouraging prospective passengers from wearing non-islamic religious symbols aboard the aircraft, such as cross necklaces and cross shirts. 33. Passengers have an absolute and unqualified legal right to wear cross necklaces on board the aircraft. Passengers have an absolute and unqualified legal right to wear cross shirts on board the aircraft. However, Saudia prohibits the wearing of these articles when it deems the use thereof to be disruptive. See Answer of Saudi Arabian Airlines, Case No. DOT-OST-2015-0093, p. 2. 9
34. The wearing of a cross necklace or a cross shirt cannot under any circumstances jeopardize passenger safety, because it is not an article which can be used to cause physical damage or bodily injury. 35. Saudia s policy prejudices members of non-islamic faiths, because the wearing of Islamic clothing is not viewed as disruptive, while the wearing of cross necklaces or cross shirts may be viewed as disruptive by the crew or other passengers. 36. Saudia demonstrates a clear preference towards members of the Islamic faith as opposed to members of non-islamic faiths, as manifested by (a) the public recitation of an Islamic prayer prior to take-off, (b) the contents of their in flight audio and video programs, (c) the reservation of a specific area of the aircraft intended for Islamic prayer, and (d) their willingness to allow the wearing of burqas and hijabs, while at the same time discouraging or prohibiting the visible wearing of Christian or other non-islamic symbols. 37. The acts complained of herein constitute a violation of 49 U.S.C. 40127(a), 41310(a), and 41712(a). COUNT II 49 U.S.C. 40101(a)(1) 38. The allegations set forth in paragraphs 1-37 above are incorporated by reference as though fully set forth herein. 10
39. The Secretary s paramount statutory responsibility is to ensure the safety and security of air passengers. 49 U.S.C. 40101(a)(1). 40. Persons publicly displaying non-islamic religious articles, such as cross necklaces and cross shirts, may be subject to fines, detention, or other sanctions while waiting in the airport transit areas of the Riyadh or Jeddah airports for their connecting flights. 41. Saudia, 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 display of non-islamic religious articles while waiting for their connecting flights in the Riyadh or Jeddah airport transit areas, or while on board any Saudia flight from the United States. 42. In the event Saudia 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 Saudia to carry passengers from airports in the United States. 49 U.S.C. 41304(a). COUNT III VIOLATION OF 49 U.S.C. 41712(a) 43. The allegations set forth in paragraphs 1-42 above are incorporated 11
by reference as though fully set forth herein. 44. Saudia engages in unfair practices and unfair methods of competition by offering tickets for sale in the United States without informing the public of the restrictions imposed upon persons wearing non-islamic religious articles, while on the aircraft or in the Riyadh or Jeddah airport transit areas. Saudia further has an obligation under 49 U.S.C. 41712(a) to inform third party ticket agents such as Expedia of these restrictions, who in turn are obligated to furnish such information to persons buying tickets through them. 45. The failure of Saudia to provide such information could endanger the personal security of persons publicly displaying non-islamic religious articles if they were to fly without notice of the applicable restrictions. The failure of Saudia to provide such information also deprives all other prospective passengers of the right to decide whether they wish to fly on Saudia or to transit through Saudi Arabia in light of such restrictions. 46. 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 IV VIOLATION OF FIRST AND FIFTH AMENDMENT RIGHTS 47. The allegations set forth in paragraphs 1-46 above are incorporated 12
by reference as though fully set forth herein. 48. Saudia is prohibited from affording preferential treatment towards members of the Islamic faith. Non-Islamic passengers have the same right as Islamic passengers to openly express their religious beliefs aboard Saudia aircraft. 49. Saudia is operated as a pervasively sectarian airline. The use of public airport facilities for the purpose of operating the airline violates the prohibition against governmental endorsement of any religion, as enshrined in the Establishment Clause of the U.S. Constitution. 50. Any order issued by the Secretary of Transportation that authorizes discrimination on the basis of religion 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 law. WHEREFORE, Complainant requests that the Secretary order Saudia to provide warning of any restrictions imposed upon wearing non-islamic religious symbols. This order should be issued immediately without waiting for the conclusion of these proceedings. Complainant further requests that the Secretary find that Saudia is in violation of the abovementioned laws, and further order the termination of the discriminatory 13
conduct alleged herein. If compliance with such orders is not forthcoming, then the Secretary must revoke the permit granted to Saudia to fly passengers from airports in the United States. 49 U.S.C. 41304(a). 14
CERTIFICATE OF SERVICE I hereby certify that I have on this 13 th day of July, 2015 caused this Complaint to be sent via email to each of the individuals listed below, and no indication was received that such transmission had failed: Judith Kaleta, Esq. Deputy General Counsel U.S. Department of Transportation 1200 New Jersey Avenue, S.E. Washington D.C. 20590 judy.kaleta@dot.gov 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 blane.workie@dot.gov Jeffrey Rhodes Dickstein Shapiro LLP 1825 Eye Street N.W. Washington, D.C. 20006-5403 Attorney of Record for Saudi Arabian Airlines rhodesj@dicksteinshapiro.com Jeffrey Lovitky