Background
During a Delta flight from Atlanta to Salt Lake City, passenger Atef Bandary repeatedly left his seat, used different bathrooms, looked into the first-class cabin, visited his partner, and photographed flight attendants. Bandary attributed much of his movement to medical needs. Several passengers considered his conduct concerning, however, and an off-duty pilot reported it to the flight crew. After consulting the captain, lead flight attendant Joy Rodemoyer approached Bandary intending to ask him to remain seated for the rest of the flight.
The encounter escalated, although Bandary and the flight attendants disputed what occurred. Rodemoyer sought assistance from a federal law enforcement agent aboard the aircraft. The agent intervened, and Rodemoyer helped restrain Bandary with flex cuffs until landing. Bandary sued Delta under the Montreal Convention for physical and emotional injuries. A jury awarded him approximately $7.2 million after accounting for contributory negligence, but the district court vacated the verdict, granted a new trial, and later entered summary judgment for Delta based on immunity under the Aviation and Transportation Security Act.
The Court’s Holding
The Ninth Circuit affirmed. Joining the Second and Fifth Circuits, the majority held as a matter of first impression in the circuit that ATSA immunity is not confined to liability for the initial disclosure of suspicious activity. It also covers conduct flowing from law enforcement’s decisions after the disclosure. The court reasoned that imposing liability for those consequences would undermine Congress’s objective of encouraging airlines to report potential safety threats.
The majority further held that no genuine dispute of material fact existed as to whether Bandary’s conduct was suspicious to a reasonable airline employee. It also found no evidence that Delta alone caused his injuries, because the federal agent assessed the situation, assumed control, directed or participated in the restraint, and treated Bandary as being in his custody. Bandary failed to produce sufficient evidence of bodily injury before the agent intervened. Because ATSA immunity covered all asserted physical injuries, the Montreal Convention did not permit recovery for his emotional injuries alone.
Judge Higginson dissented. He would have reversed the summary judgment because the competing testimony and the jury’s special-verdict finding that Delta had not disclosed a suspicious transaction demonstrated a genuine factual dispute over whether Bandary’s conduct was suspicious.
Key Takeaways
- In the Ninth Circuit, ATSA immunity extends beyond an airline’s security report to conduct flowing from law enforcement’s decisions after that report.
- An airline is not protected for consequences caused solely by its own independent actions, but the record here showed that the federal agent controlled and participated in Bandary’s restraint.
- Once immunity foreclosed recovery for all alleged bodily injuries, Bandary could not recover under the Montreal Convention for emotional harm standing alone.
Why It Matters
The decision broadens the practical protection available to airlines and their employees when they report perceived safety threats and then assist responding officers. It aligns the Ninth Circuit with the Second and Fifth Circuits on the reach of ATSA immunity.
The dissent highlights a significant litigation issue: whether suspiciousness may be resolved as a matter of law when witness accounts conflict. The majority concluded that no reasonable dispute remained on this record, notwithstanding the vacated jury verdict.