Bavis v. UAL Corp. (811 F. Supp. 2d 883, 2011)

ORDER AND OPINION REGULATING BURDENS OF PROOF AND ISSUES FOR JURY INSTRUCTIONS

ALVIN K. HELLERSTEIN, District Judge:

This case is the last remaining wrongful-death action of the 95 originally filed. Trial is to begin November 7, 2011. The parties seek rulings on certain basic issues: (i) whether federal law preempts state law on the standard of care applicable to Defendants’ conduct; (ii) whether, if federal law is preemptive, what is the standard regulating defendants’ conduct, and what should be the order and burdens of proof; and (iii) what categories of damages Plaintiff may recover. In this Order and Opinion, I address the first two questions; the issue of damages will be addressed in a later Order and Opinion.

I. Introductory Facts

On the morning of September 11, 2001, five terrorists — Arwan al Shehhi, Fayez Banihammad, Ahmed al Ghamdi, Hamza al Ghamdi, and Mohand al Shehri — boarded United Airlines Flight 175, scheduled to depart from Boston’s Logan International Airport and destined for Los Angeles. They passed through a security checkpoint controlled by United Airlines and managed by its security contractor, Huntleigh USA Corporation. The flight left the gate at 7:58 am, departed from Logan Airport at 8:14 am, and reached a cruising altitude of 31,000 feet by 8:33 am. At some time between 8:42 am and 8:46 am, the five terrorists began their attack, using stabbing weapons, mace, and a bomb threat to kill members of the flight crew and to control the passengers. By 8:58 am, it is believed, the hijackers had taken control of the airplane and diverted it toward New York City. At 9:03 am, United Airlines Flight 175 struck Tower 2 of the World Trade Center. The impact caused the immediate deaths of all on board.

Two weeks after the events of September 11, Congress passed the Air Transportation Safety and System Stabilization Act (“ATSSSA”), 49 U.S.C. § 40101 et seq., to provide (among other objectives) a cause of action for “damages arising out of the hijacking and subsequent crashes” of the airlines seized by terrorists that fateful day, ATSSSA § 408(b)(1), and to provide exclusive jurisdiction in the United States District Court for the Southern District of New York for all cases arising from the terrorist-related aircraft crashes of September 11, 2001, id. § 408(b)(3); see generally In re Sept. 11 Litig., 600 F.Supp.2d 549 (S.D.N.Y.2009).

In this case, the Plaintiff, Mary Bavis, suing on her own behalf and as the representative of the estate of her son, Mark Bavis, alleges that Defendants United Airlines and Huntleigh USA Corporation were negligent in allowing terrorists to board Flight 175 and then, using weapons, to take it over and crash it, thereby causing the death of Mark Bavis, her son. Defendants acknowledge that the events of September 11, 2001, were tragic, but deny that they were negligent.

II. The Governing Law

Under ATSSSA, “[t]here shall exist a Federal cause of action for damages arising out of the hijacking and subsequent crashes of ... United flightf ] 175, on September 11, 2001.” Id. § 408(b)(1). The Court is to apply “the law ... including choice of law principles, of the State in which the crash occurred unless such law is inconsistent with or preempted by Federal law.” ATSSSA § 408(b)(2). Under New York law, as a general matter, the elements of a wrongful-death action are “(1) the death of a human being born alive; (2) a wrongful act, neglect or default of the defendant by which the decedent’s death was caused, provided the defendant would have been liable to the deceased had death not ensued; (3) the survival of distributees who suffered pecuniary loss by reason of the death of decedent; and (4) the appointment of a personal representative of the decedent.” Chong v. New York City Transit Auth., 83 A.D.2d 546, 441 N.Y.S.2d 24, 25-26 (N.Y. Second App. Div.1981). A key issue in this case, and the focus of this Order and Opinion, is the second element, whether Defendants committed some wrongful act or act of negligence.

The first step in the analysis is to set out the applicable federal statutes. There are two to consider, the Federal Aviation Act of 1958, Pub.L. No. 85-726, 72 Stat. 744, and the Aviation Security Improvement Act of 1990, Pub.L. No. 101-604, 104 Stat. 3066. The Federal Aviation Act, the first statute to set out requirements and standards of safety for airlines, deals with safety in the building, maintaining, and operating of aircraft. It is codified in Chapter 447 of Title 49, and is named “Safety Regulation.” The statute requires the Administrator of the Federal Aviation Administration (“FAA”) to prescribe regulations that promote safe design, construction, maintenance and operation of airplanes, to conform to “minimum safety standards” that the Administrator also is to prescribe, to “reduce or eliminate the possibility or recurrence of accidents,” and, in general, to “consider the duty of an air carrier to provide service with the highest degree of safety in the public interest.” 49 U.S.C. § 44701. In relevant part, the statute provides:

(a) PROMOTING SAFETY. — The Administrator of the Federal Aviation Administration shall promote safe flight of civil aircraft in air commerce by prescribing—

(1) Minimum standards required in the interest of safety for appliances and for the design, material construction, quality of work, and performance of aircraft, aircraft engines, and propellers;

(2) regulations and minimum standards in the interest of safety for—

(A) inspecting, servicing, and overhauling aircraft, aircraft engines, propellers, and appliances;

(B) equipment and facilities for, and the timing and manner of, the inspecting, servicing, and overhauling, and

(C) a qualified private person, instead of an officer of employee of the Administration, to examine and report on the inspecting, servicing, and overhauling;

(3) regulations required in the interest of safety for the reserve supply of aircraft, aircraft engines, propellers, appliances, and aircraft fuel and oil, including the reserve supply of fuel and oil carried in flight;

(4) regulations in the interest of safety for the maximum hours or periods of service of airmen and other employees of air carriers; and

(5) regulations and minimum standards for other practices, methods, and procedure the Administrator finds necessary for safety in air commerce and national security.

(b) PRESCRIBING MINIMUM

SAFETY STANDARDS. — The Administrator may prescribe minimum safety standards for—

(1) an air carrier to whom a certificate is issued under section 44705 of this title; and

(2) operating an airport serving any passenger operation of air carrier aircraft designed for at least 31 passenger seats.

(c) REDUCING AND ELIMINATING ACCIDENTS. — The Administrator shall carry out this chapter in a way that best tends to reduce or eliminate the possibility or recurrence of accidents in air transportation. However, the Administrator is not required to give preference either to air transportation or to other air commerce in carrying out this chapter.

(d) CONSIDERATIONS AND CLASSIFICATION OF REGULATIONS AND STANDARDS. — When prescribing a regulation or standard under subsection (a) or (b) of this section or any of sections 44702-44716 of this title, the Administrator shall

(1) consider—

(A) the duty of an air carrier to provide service with the highest possible degree of safety in the public interest; and

(B) differences between air transportation and other air commerce; and

(2) classify a regulation or standard appropriate to the differences between air transportation and other air commerce.

The second set of statutes at issue was enacted as part of the Aviation Security Improvement Act of 1990, as amendments to the Federal Aviation Act. They are codified under the title of “Security,” in a separate chapter of title 49 of the United States Code, Chapter 449. The statutes require the FAA Administrator to prescribe regulations “requiring screening of all passengers and [carry-on] property,” to “ensure security against criminal violence and aircraft piracy.” The regulations prescribed by the Administrator are to establish a “uniform procedure for searching and detaining passengers and property to ensure their safety.”

Two provisions of the Aviation Security Improvement Act are relevant. First, 49 U.S.C. § 44901 provides:

(a) GENERAL REQUIREMENTS.— The Administrator of the Federal Aviation Administration shall prescribe regulations requiring screening of all passengers and property that will be carried in a cabin of an aircraft in air transportation or intrastate air transportation. The screening must take place before boarding and be carried out by a weapons-detecting facility or procedure used or operated by an employee or agent of an air carrier, intrastate air carrier, or foreign air carrier.

(b) AMENDING REGULATIONS.— Notwithstanding subsection (a) of this section, the Administrator may amend a regulation prescribed under subsection (a) only to ensure security against criminal violence and aircraft piracy and intrastate air transportation.

(c) EXEMPTIONS AND ADVISING CONGRESS ON REGULATIONS.— The Administrator—

(1) may exempt from this section air transportation operations, except scheduled passenger operations of an air carrier providing air transportation under a certificate issued under section 41102 of this title or a permit issued under section 41103 of this title; and

(2) shall advise Congress of a regulation to be prescribed under this section at least 30 days before the effective date of the regulation, unless the Administrator decides an emergency exists requiring the regulation to become effective in fewer than 30 days and notifies Congress of that decision.

Second, 49 U.S.C. § 44903 provides:

(b) PROTECTION AGAINST VIOLENCE AND PIRACY. — The Administrator shall prescribe regulations to protect passengers and property on an aircraft operating in air transportation or intrastate air transportation against an act of criminal violence or aircraft piracy. When prescribing a regulation under this subsection, the Administrator shall—

(1) consult with the Secretary of Transportation, the Attorney General, the heads of other departments, agencies, and instrumentalities of the United States Government, and State and local authorities;

(2) consider whether a proposed regulation is consistent with—

(A) protecting passengers; and

(B) the public interest in promoting air transportation and intrastate air transportation;

(3) to the maximum extent practicable, require a uniform procedure for searching and detaining passengers and property to ensure—

(A) their safety; and

(B) courteous and efficient treatment by an air carrier, an agent or employee of an air carrier, and Government, State, and local law enforcement personnel carrying out this section; and

(4) consider the extent to which a proposed regulation will carry out this section.

Subsection (c) of this provision provides for the creation of security programs by the airlines, to implement the security and screening requirements of subsection (b). It provides that the Administrator “shall prescribe regulations under subsection (b) that ‘require each operator of an airport regularly serving and air carrier holding a certificate issued by the Secretary of Transportation to establish an air transportation security program that provides a law enforcement presence and capability at each of those airports that is adequate to ensure the safety of passengers.”’ 49 U.S.C. § 44903(c).

Pursuant to the statutory delegation of authority, the FAA promulgated regulations that set forth duties for creating and effecting a security program in an airport. See 14 C.F.R. Pt. 108 (2001). These regulations impose comprehensive requirements for conducting security programs in an airport, including, among other items, procedures for providing screening functions, § 108.9; control of the airplane and airport facilities, § 108.13; provision of law enforcement, § 108.15; and a number of other requirements.

The regulations impose elaborate requirements on a certificate holder (Defendant United Airlines is such a certificate holder). For example, § 108.10 requires the certificate holder to provide a Security Coordinator on the ground, and in the airplane, to “carry out ... duties specified in the certificate holder’s approved security program” to deter hijackings and sabotage attempts. Section 108.11 prohibits the certificate holder from permitting any person to bring on board a “deadly or dangerous weapon, either concealed or unconcealed, accessible to him or her while aboard.” Other regulations in Part 108 provide additional requirements.

Section 108.5 requires an air carrier to create a security program and obtain approval of it from the FAA Administrator. The requirements are set forth in 14 C.F.R. § 108.7, with the overall purpose “to protect passengers and property on an aircraft operating in air transportation or intrastate air transportation against an act of criminal violence or aircraft piracy 49 U.S.C. § 44903(b). The regulation provides:

(a)Each security program required by § 108.5 shall—

(1) Provide for the safety of persons and property traveling in air transportation and intrastate air transportation against acts of criminal violence and air piracy;

(2) Be in writing and signed by the certificate holder or any person delegated authority in this matter;

(3) Include the items listed in paragraph (b) of this section, as required by § 108.5; and

(4) Be approved by the Administrator.

(b) Each security program required by § 108.5 must include the following, as required by that section:

(1) The procedures and a description of the facilities and equipment used to perform the screening functions specified in § 108.9.

(2) The procedures and a description of the facilities and equipment used to perform the airplane and facilities control functions specified in § 108.13.

(3) The procedures used to comply with the applicable requirements of § 108.15 regarding law enforcement officers.

(4) The procedures used to comply with the requirements of § 108.17 regarding the use of X-ray systems.

(5) The procedures used to comply with the requirements of § 108.19 regarding bomb and air piracy threats.

(6) The procedures used to comply with the applicable requirements of § 108.10.

(7) The curriculum used to accomplish the training required by § 108.23.

(8) the procedures and a description of the equipment used to comply with the requirements of § 108.20 regarding explosives detection systems.

(c) Each certificate holder having an approved security program shall—

(1) Maintain at least one complete copy of the approved security program at its principal business office;

(2) Maintain a complete copy or the pertinent portions of its approved security program or appropriate implementing instructions at each airport where security screening is being conducted;

(3) Make these documents available for inspection upon request of any Civil Aviation Security Inspector;

(4) Restrict the distribution, disclosure, and availability of sensitive security information, as defined in part 191 of this chapter, to persons with a need-to-know; and

(5) Refer requests for sensitive security information by other persons to the Assistant Administrator for Civil Aviation Security.

Additional subparts of Section 108, identified in the subparts of § 108.7(b), provide additional detail for the certificate holder’s security program, as well as its obligations with respect to the duties set out.

Section 108.25 sets out the process by which the FAA Administrator considers and approves the certificate holder’s proposed security program. The regulation provides that the certificate holder is to submit the proposed plan no less than 90 days before intended flight operations, and that the Administrator, within 30 days of receipt, “either approves the program or notifies the certificate holder to modify the program to comply with the applicable requirements of this part.” 14 C.F.R. § 108.25(a). Nothing in the regulation, however, sets out the criteria the Administrator is to use to decide if a proposed security program is “adequate” to protect passengers and their property against crimes of violence and air piracy. 49 U.S.C. § 44903(c).

III. Discussion

a. Federal Preemption

The parties dispute whether the federal law and regulations discussed above preempts state law. Defendants argue that the comprehensiveness and uniformity of the federal law and regulations show that Congress intended for federal law to govern issues of aviation safety and security, to the exclusion of state law. Plaintiff disagrees, arguing that the term “minimum standards” in § 44701(a) of the Federal Aviation Act shows a congressional intent to incorporate state law standards of reasonableness.

The Supremacy Clause of the Constitution establishes that federal law “shall be the supreme law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. Art. VI, cl. 2. The question of preemption “is basically one of congressional intent,” which asks, “[d]id Congress, in enacting the Federal Statute, intend to exercise its constitutionally delegated authority to set aside the laws of a State?” Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 30, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996). Such an intention may be seen in “a scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Id. at 31, 116 S.Ct. 1103 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)).

In Air Transport Association of America, Inc. v. Cuomo, 520 F.3d 218 (2d Cir.2008) (per curiam), the Court of Appeals ruled, in dicta, that “[t]he FAA was enacted to create a uniform and exclusive system of federal regulation in the field of air safety.” Id. at 224 (quoting City of Bur bank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 639, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973)). The Act “was passed by Congress for the purpose of centralizing in a single authority — indeed, in one administrator — the power to frame rules for the safe and efficient use of the nation’s airspace.” Air Line Pilots Ass’n, Int’l v. Quesada, 276 F.2d 892, 894 (2d Cir.1960). As Air Transport Association noted, “[t]he intent to centralize air safety authority and the comprehensiveness of these regulations pursuant to that authority have led several other circuits (and several courts within this Circuit) to conclude that Congress intended to occupy the entire field and thereby preempt state regulation of air safety.” 520 F.3d at 225. The rule of preemption reflects a dominant view in the federal courts. See U.S. Airways, Inc. v. O’Donnell, 627 F.3d 1318, 1326 (10th Cir.2010); Montalvo v. Spirit Airlines, 508 F.3d 464, 468 (9th Cir.2007); Greene v. B.F. Goodrich Avionics Sys., Inc., 409 F.3d 784, 795 (6th Cir.2005); Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 367-68 (3d Cir.1999); French v. Pan Am Express, Inc., 869 F.2d 1, 5 (1st Cir.1989).

In Goodspeed Airport LLC v. East Haddam Inland Wetlands & Watercourses Commission, 634 F.3d 206 (2d Cir.2011), the Second Circuit Court of Appeals adopted the language of Air Transport Association and held that “Congress intended to occupy the field of air safety,” id. at 210, and that if “state regulation sufficiently interferes with federal regulation ... it should be deemed preempted,” id. at 211 (quoting Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 107, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992)). In that case, however, the state environmental regulation required a permit to cut down trees on wetlands, and the Court found that the requirement did not sufficiently interfere with federal aviation regulations to be preempted. Id. at 211.

Unlike Goodspeed Airport, Plaintiffs argument for a state standard of care would directly affect federal standards and contradict the statutory requirement that the FAA Administrator, “to the maximum extent practicable, require a uniform procedure to searching and detaining passengers and property,” 49 U.S.C. § 44903(b)(3), “to protect passengers and property on an aircraft operating in air transportation or intrastate air transportation against an act of criminal violence or aircraft piracy,” id. § 44903(b). Congress delegated to the Administrator, not the States, the power to determine the appropriate standards of care, and it is the Administrator who must do so, after careful consultation with the Secretary of Transportation, the Attorney General, the heads of other departments, agencies and instrumentalities of the United States Government, and State and local authorities. 49 U.S.C. § 44903(b)(1). The federal statutes, and the regulations promulgated thereunder, make clear that there is no room for such state law. In re Air Crash Near Clarence Center, New York, on Feb. 12, 2009, 09 MDL 2085, 798 F.Supp.2d 481, 484-85, 2011 WL 2848812, at *2 (July 28, 2011). The statutory mandate for uniformity is inconsistent with Plaintiffs argument that state law should be considered along with federal regulations, for air carriers then would be subjected to an untenable mixture of 50 different state legal regimes, and not to a uniform federal legal regime. Id. at 485-86, at *3.

Plaintiff argues that § 44701(a)(5) of the Federal Aviation Act, the 1958 law dealing with issues of design, construction, maintenance and operations of aircraft, shows an intent to supplement federal law with state law because it directs the FAA Administrator to promulgate “minimum standards.” The phrase does not appear in the 1990 amendments to the Federal Aviation Act, promulgated in the Aviation Security Improvement Act, dealing with security and screening issues to protect against criminal violence and air piracy. Those sections require the Administrator to promulgate regulations that require “a uniform procedure for searching and detaining passengers”; the law does not mention “minimum standards.” See 49 U.S.C. § 44903(b)(3). But even if the “minimum standards” approach were to apply, that would be a direction to the FAA Administrator, not an open door to litigants and courts to second-guess the Administrator.

b. The Standard of Care

Defendants contend that under the applicable governing federal statute, the Aviation Security Improvement Act, and the regulations promulgated under 14 C.F.R. Part 108, and United Airlines’ own security program as approved by the FAA Administrator, there can be no inquiry into whether their conduct was “reasonable.” The issue at trial rests on Defendants’ substantial compliance with governing statute, regulations, and security programs. Plaintiff argues that the Aviation Security Improvement Act, as an amendment to the Federal Aviation Act, incorporated the “minimum standards” approach of the original Act, and thus a reasonableness inquiry remains the ultimate test. Plaintiff would have this Court instruct the jury, not only if Defendants substantially complied with regulations, but also if they acted reasonably in the circumstances.

Section 44701 of the Federal Aviation Act, dealing with “aviation safety,” speaks to the physical aircraft, and to the operations of the aircraft. The FAA Administrator promulgations are to satisfy “minimum standards,” with regard to discrete matters like quality of the materials used and operating capacity of the engines, § 44701(a)(1); to the rigors for inspecting the aircraft, § 44701(a)(2); to needed reserve supplies for the aircraft, § 44701(a)(3); and to regulate the number of hours of flight attendants and pilots. § 44701(a)(4). There is also the catchall provision of § 44701(a)(5), “for other practices, methods, and procedure the Administrator finds necessary for safety in air commerce and national security,” but this catchall must be read in light of the rest of § 44701(a), for the statute must be construed as a whole. Nat. Res. Def. Council v. Abraham, 355 F.3d 179, 195 (2d Cir.2004).

The relevant provisions of the Aviation Security Improvement Act were enacted more than 30 years after the promulgation of the Federal Aviation Act, as a direct response to the 1988 terrorist-related bombing of Pan American World Airways Flight 103, over Lockerbie, Scotland. See Aviation Security Improvement Act of 1990: Hearing and Markup of H.R. 5200 Before H. Comm, on Foreign Affairs, H. SubComm. on Aviation and the H.Comm. on Public Works and Transportation, 101st Cong, at 15 (1990) (statement of Ann McLaughlin, former chairmen, President’s Commission on Aviation Security and Terrorism). In response to the Lockerbie disaster, a Presidential Commission on Aviation Security and Terrorism was formed pursuant to an Executive Order, to ascertain “the truth about the events leading up to the tragedy, and to assure changes to the nation’s aviation security system to prevent further such disasters.” Id. at VII (report attached to legislative history). The Commission evaluated the then-current state of the aviation industry, identified weaknesses, and proposed dozens of improvements in security measures, many dealing with an increased presence of federal regulation. See id. at 18-35 (report of Ann McLaughlin).

The President’s Commission reported, and Congress found, that the Lockerbie disaster represented an evolving worldwide terrorist threat to the aviation industry. See id. at 2 (statement of Sen. Lautenberg). Congress therefore undertook a vigorous enhancement of federal control over the area of aviation security. Central to Congress’ decision to increase federal control of aviation security was the decision to provide the FAA Administrator with greater control over security, by directing the Administrator to promulgate regulations “to protect passengers and property,” 49 U.S.C. § 44903(b), and not “minimum standards,” 49 U.S.C. § 44701(a)(5), for security. Congress reserved for itself the right to review the Administrator’s regulations before their promulgation. See 49 U.S.C. § 44901(c)(2) (directing the Administrator to “advise Congress of a regulation to be prescribed under this section at least 30 days before the effective date of the regulation.”).

The Aviation Security Improvement Act provides specifically that the Administrator must provide regulations for appropriate weapons-detecting facilities, 49 U.S.C. § 44901(a), and is to consult with the Attorney General, the Secretary of Transportation, and various other federal and state officials in promulgating appropriate regulations, id. § 44903(b). Such regulations must, “to the maximum extent practicable, require a uniform procedure for searching and detaining passengers and property to ensure” safety and courteous treatment of passengers. Id. § 44901(b)(3). Additional statutory provisions direct airlines to provide information about threats to civil aviation to federal authorities, § 44905(a), and direct the Central Intelligence Agency, the National Security Agency, the Federal Bureau of Investigation, and other federal departments to conduct intelligence gathering and provide reports to the FAA and the Secretary of Transportation, § 44911(b). The FAA Administrator also is to conduct research and development on counterterrorism efforts for the aviation industry. 49 U.S.C. § 44912.

Congress created a comprehensive federal scheme to provide for aviation security specifically designed to protect persons and property of passengers against violence and terrorism. The detailed, comprehensive regulatory security regime sets out a uniform system of duties and requirements, not minimum standards to be interpreted in different ways, in different cases.

Notwithstanding these observations, I have not yet seen Defendants’ security program, or considered the manner in which it was considered “adequate to ensure the safety of passengers,” the statutory criteria of 49 U.S.C. § 44903(c). The parties have not briefed the degree of deference to give to Defendants’ security program or its approval, or whether standards of reasonableness should govern specific applications of procedures to the persons and things passing through the check-points. And, as with all motions in limine of trial, my rulings expressed by this Order and Opinion are subject to consideration at trial to reflect the context of the proofs.

c. Burdens of Production

In light of this guidance, the question remains, how shall the parties prove the second requirement of New York law governing wrongful death suits — a wrongful act, neglect or default of the Defendant by which the decedent’s death was caused? See Chong, 441 N.Y.S.2d at 25-26. As I stated at a recent conference of all counsel, Plaintiff will have to prove how the terrorists seized the airplane. Subject to proof to the contrary, it will be presumed that the terrorists and the weapons they used passed through defendants’ security checkpoints in the same way that all passengers in all airports board airplanes and bring personal effects with them. 2 McCormick on Evid. § 337 (6th ed. 2010). Defendants then will have to come forward with evidence showing due care at the checkpoints by complying substantially with applicable regulations and procedures. See 14 C.F.R. Part 108.

“Presumptions shifting the burden of proof are often created to reflect judicial evaluations of probabilities and to conform with a party’s superior access to the proof.” Int’l Broth. of Teamsters v. United States, 431 U.S. 324, 359 n. 45, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Where a defendant has superior access to knowledge of relevant facts, courts may shift a burden to the defendant, by permitting the plaintiff to make an initial showing and obtain the benefit of a presumption. 2 McCormick on Evid. § 337. Courts should not do so lightly, but should consider whether particular circumstances warrant such burden-shifting. Id. Courts also may shift a burden of production in consideration of “the judicial estimate of the probabilities of the situation.” Id. In such a scenario, the Court may shift the burden to the party “who contends the more unusual event has occurred.” Id.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court employed a burden-shifting technique, to enable both the plaintiff to show a prima facie case of employment discrimination and the employer to show a neutral reason why the employee did not receive a favorable employment decision. Although the plaintiff retains the ultimate burden to persuade the jury, Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), the employer can be called upon to explain its hiring practices and its intentions with regard to the particular employee. McDonnell Douglas, 411 U.S. at 801-02, 93 S.Ct. 1817. In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court employed the same logic to enable a criminal defendant to challenge the state’s use of peremptory strikes by shifting to the prosecutor the burden to show a neutral reason for striking particular members of the venire pool. Id. at 96-98, 106 S.Ct. 1712.

As in McDonnell Douglas and Bat-son, Defendants here seek to show that they complied with their own methods and procedures. Defendants are in the best position to show what they did and why they did it. It is appropriate to require Defendants to assume the burden to come forward with this evidence. If Defendants succeed, Plaintiff will have the ultimate burden of proving some overall failure of due care, if due care is shown to be the standard. If Defendants’ substantial compliance with regulations and procedures is shown to be a defense, Defendants will have that ultimate burden of persuasion, as well as of coming forward with sufficient evidence. I defer this question to later 'proceedings. See Greenway v. Buffalo Hilton Hotel, 143 F.3d 47 (2d Cir.1998) (court decides whether presumption has been rebutted under McDonnell Douglas ).

IV. Conclusion

Presently, the parties are scheduled to submit pretrial materials on September 2, 2011 and September 23, 2011. Those materials will be affected by this Opinion and Order, and the dates are therefore each adjourned two weeks, to September 16, 2011, and October 7, 2011. The parties shall appear for their next conference on September 19, 2011, at 10:30 am. The conference shall be held at 2:30 pm, in Courtroom 14D. The Clerk shall terminate the motions (Doc. Nos. 159 and 162 in No. 02 Civ. 7154).

SO ORDERED.

Attachment

Pt. 108

the flies, and the address of the location and the phone number at the location where the investigative files are maintained,

[Doc. No. 28859. 03 FK 51218, Sept. 24, 1998; 63 FR 60448, Nov, 9,19981

PART 108 — AIRPLANE OPERATOR SECURITY

Sec.

108.1 Applicability.

108.3 Definitions,

108.4 Falsification.

108.6 Security program; Adoption and implementation.

108.7 Security program; Form, content, and availability.

108.9 Screening of passengers and property.

108.10 Prevention and management of hijackings and sabotage attempts.

308.11 Carriage of weapons.

108.13 Security of airplanes and faoilltiea.

108.14 Transportation oí Federal Air Marshals.

108.16 Law enforcement officers.

108.17 XJbb of X-ray Byatems.

108.18 Seourity Directives and Information Circulars.

108.19 Security threats and procedures,

108.20 Use of explosives detection syatema.

108.21 Carriage of passengers under the control of armed law enforcement escorts.

108.23 Training.

108.25 Approval of security programs and amendments.

108.27 Evidence of compliance.

108129 Standards for security oversight.

108.31 Employment standards for screening personnel.

106.33 Employment history, verification and criminal history records checks.

Authority: 49 U.3.C: 100(g), 5103. 40113, 40119 , 44701-44702 , 44705, 44901-44905, 44907, 44913-44914, 44932, 44835-44938, 48106.

SOURCE; Docket No. 108, 46 FR 3786, Jan. 16, 1981, unless otherwise noted,

} 108.1 Applicability.

(a)This part prescribes aviation security rules governing—

(1) The operations of holders of FAA air oarrler operating certificates or operating certificates engaging in scheduled passenger operations or public charter passenger operations;

(2) Bach person aboard an airplane operated by a certificate holder described in paragraph (a)(1) of this section;

(3) Each person on an airport at which the operations described in paragraph (a)(1) of this section are conducted;

14 CFR Ch. I (1-1-01 Edition)

(4)Each certificate holder who receives a Security Directive or Information Circular and each person who receives information from a Security Directive or an Information Circular issued by the Director of Civil Aviation Security; and

(6) Each person who files an application or makes entries into any record or report that is kept, made or used to show compliance under this part, or to exercise any privileges under this part.

(b)This part does not apply to helicopter or to all-cargo operations.

[Doe. No. 24883, 61 FR 1352, Jan, 10, 1986, as amended by Amdt. 108-6, 54 FR 28084, July 10. 1989; Amdt, 108-14. 61 FR 64244, Dec. 3,19961

$ 108.3 Definitions.

The following are definitions of terms used in this part:

(a) Certificate holder means a person holding an FAA operating certificate when that person engages in scheduled passenger or public charter passenger operations or both.

(b) Passenger seating configuration means the total number of seats for which the aircraft is type certificated that can be made available for passenger use aboard a flight and includes that seat in certain airplanes which may he used by a representative of the Administrator to conduct flight checks but is available for revenue purposes on other occasions.

(c) Private charter means any charter for- which the charterer engages the total capacity of an airplane for the carriage of;

(1) Passengers in civil Or military air movements conducted under contract with the Government of the United States of the Government of a foreign country; or

(2) Passengers Invited by the charterer, the cost of which is borne entirely by the charterer and not directly or indirectly by the individual passengers.

(d) Public charter means any charter that is not a private charter.

(e) Scheduled passenger operations means holding out to the public of air transportation service for passengers from Identified air terminals at a set time announced by timetable or schedule published in a newspaper, magazine, or other advertising medium.

Federal Aviation Administration, DOT

(1) Sterile area means an area to which access is controlled by the Inspection of persons and property In accordance with an approved security program or a security program used in accordance with §129.25.

§108.4 Falsification.

No person may make, or cause to be made, any of the following;

(a) Any fraudulent or Intentionally false statement in any application for any security program, access medium, or identification medium, or any amendment thereto, under this part.

(b) Any fraudulent or intentionally false entry in any record or report that is kept, made, or used to show compliance with this part, or to exercise any privileges under this part.

(c) Any reproduction or alteration, for fraudulent purpose, of any report, record, security program, access medium, or identification medium issued under thlB part.

[Doc. No. 28745, 61 FR 64244, Dac. 3, 1096)

§ 108.5 Security program; Adoption and implementation.

(a)Each certificate bolder shall adopt and carry out a security program that meets the requirements of §108.7 for each of the following scheduled or public charter passenger operations:

(X) Each operation with an airplane having a passenger seating configuration of more than 60 seats.

(2) Each operation that provides deplaned passengers access, that is not otherwise controlled by a certificate holder using an approved security program or a foreign air carrier using a security program required by §129.25, to a sterile area.

(3) Each operation with an airplane having a passenger seating configuration of more than 30 but less than 61 seats; except that those parts of the program effecting compliance with the requirements listed in §108.7(b) (1), (2). and

(4) Need only be Implemented when the Director of Olvll Aviation Security or a designate of the Director notifies the certificate holder in writing that a security threat exists with respect to the operation.

§ 108.7

(b)Each certificate holder that has obtained FAA approval for a security program for operations not listed in paragraph (a) of this section shall carry out the provisions of that program.

{108.7 Security program: Form, content, and availability.

(a) Each security program required by § 108.6 shall—

(1) Provide for the safety of persons and property traveling in air transportation and intrastate air transportation against acts of criminal violence and air piracy;

(2) Be in writing and Bigned by the certificate holder or any person delegated authority in this matter;

(3) Include tie Items listed In paragraph (b) of this section, as required by §108.6; and

(4) Be approved by the Administrator.

(b) Each security program required by §108.6 must include the following, as required by that section;

(1) The procedures and a description of the facilities and equipment used to perform the screening functions specified in §108.9.

(25 The procedures and a description of the facilities and equipment used to perform the airplane and facilities control functions specified in §108,13.

(3) The procedures used to comply with the applicable requirements of § 108.15 regarding law enforcement officers.

(4) The procedures used to comply with the requirements of §108.17 regarding the use of X-ray systems.

(5) The procedures used to comply with the requirements of §108.19 regarding bomb and air piracy threats.

(6) The procedures used to comply with the applicable requirements of §108.10.

(7) The curriculum used to accomplish the training required by § 108.23.

(8) The procedures and a description of the facilities and equipment used to comply with the requirements of §108.20 regarding explosives detection systems.

(c) Each certificate holder having an approved security program shall—

§ 108.9

14 CFR Ch. I (1-1-01 Edition)

(1) Maintain at least one complete copy of the approved security program at its principal business office;

(2) Maintain a complete copy or the pertinent portions of its approved security program or appropriate implementing instructions at each airport where security screening is being conducted;

(3) Make these documents available for inspection upon request of any Civil Aviation Security Inspector;

(4) Restrict the distribution, disclosure, and availability of sensitive security information, as defined in part 191 of this chapter, to persons with a need-to-know; and

(5) Refer requests for sensitive security information by other persons to the Assistant Administrator for Civil Aviation Security.

[000. No. 108, 48 PR 3786, Jan. 15, 1931, aa amended by Amdt. 103-3, 50 PR 26893, July 16, 1985; Amdt. 108-7. 54 FR 36948, Sept. 5, 1989; Amdt. 108-16,62 PR 13744, Mar. 21,1097]

S 108.9 Screening of passengers and property.

(a) Bach certificate holder required to conduct screening under a security program shall use the procedures included, and the facilities and equipment described, in its approved security program to prevent or deter the carriage aboard airplanes of any explosive, incendiary, or a deadly or dangerous weapon on or about each individuara person or accessible property, and the carriage of any explosive or incendiary in checked baggage.

(b) Bach certificate holder required to conduct screening under a security program shall refuse to transport—

(1) Any person who does not consent to a search of his or her person in accordance with the screening system prescribed in paragraph (a) of thiB section; and

(2) Any property of any person who does not consent to a search or inspection of that property in accordance with the screening system prescribed by paragraph (a) of this section.

(o)Except as provided by its approved security program, each certificate holder required to conduct screening under a security program shall use the procedures included, and the facilities and equipment described, in its approved security program for detecting explosives, incendiaries, and deadly or dangerous weapons to inspect each person entering a sterile area at each preboarding screening checkpoint in the United States for which it is responsible, and to inspect all accessible property under that person's control.

(d) Eaoh certificate holder shall staff its security screening checkpoints with supervisory and non-supervisory personnel in accordance with the standards specified in its security program,

[000. No. 106, 46 FR 3786, Jan. 15, 1981, as amended by Amdt. 108-4, 61 Fr 1352, Jan. 10, 1936; Amdt. 108-6, 62 PR 48509, Deo. 22, 1887; Amdt. 108-10, 66 PR 41426, Aug, 20, 1991]

5108,10 Prevention and management of hijackings and sabotage attempt*.

(a) Each certificate holder shall—

(1) Provide and use a Security Coordinator on the ground and in flight for each international and domestic flight, as required by its approved security program; and

(2) Designate the pilot in command as the inflight Security Coordinator for each flight, as required by its approved security program.

(b) Ground Security Coordinator. Bach ground Security Coordinator shall carry out the ground Security Coordinator duties specified in the certificate holder’s approved security program.

(c) Inflight Security Coordinator. The pilot in command of each flight shall carry out the inflight Security Coordinator duties specified in the certificate holder’s approved security program.

[Doe. No. 24719, 60 FR 28893, July 16. 1985]

$ 108.11 Carriage of weapons.

(a) No certificate holder required to conduct screening under a security program may permit any person to have, nor may any person have, on or about his or her person or property, a deadly or dangerous weapon, either ooncealed or unconcealed, accessible to him or her while aboard an airplane for which screening is required unless;

(1) The person having the weapon is—

(i) An official or employee of the United States, or a State or political subdivision of a State, or of a municipality who is authorized by his or her agenoy to have the weapon; or

Fcdara) Aviation Administration, DOT

(ii) Authorized to have the weapon by the certificate holder and the Administrator and has successfully completed a course of training in the use of firearms acceptable to the Administrator.

(2) The person having the weapon needs to have the weapon accessible in connection with the performance of his or her duty from the time he or she would otherwise check it in accordance with paragraph (d) of this section until the time it would be returned after deplaning.

(3) The certificate holder is notified—

(i) Of the flight on which the armed person intends to have the weapon accessible to him or her at least 1 hour, or in an emergency as soon as practicable, before departure; and

(ii) When the armed person is other than an employee or official of the United States, that there is a need for the weapon to be accessible to the armed person in connection with the performance of that person’s duty from the time he or she would otherwise check it in aooordance with paragraph (d) of this section until the time it would be returned to him or her after deplaning.

(4) The armed person identifies himself or herself to the certificate holder by presenting credentials that include his or her clear, full-face picture, his or her signature, and the signature of the authorizing official of his or her service or the official seal of hia or her service. A badge, shield, or similar may not be used as the sole means of identification.

(5) The certificate holder—

(1) Ensures that the armed person is familiar with its procedures for carrying a deadly or dangerous weapon aboard its airplane before the time the person boards the airplane;

(li) Ensures that the identity of the armed person is known to each law enforcement officer and each employee of the certificate holder responsible for security during the boarding of the airplane; and

fill) Notifies the pilot in command, other appropriate crewmembers, and any other person authorized to have a weapon accessible to him or her aboard the airplane of the location of each authorized armed person aboard the airplane.

§108.11

(b) No person may, while on board an airplane operated by a certificate holder for which screening is not conducted, carry on or about that person a deadly or dangerous weapon, either concealed or unconcealed. This paragraph does not apply to—

(1) Officials or employees of a municipality or a State, or of the United States, who are authorized to carry arms; or

(2) Crewmembers and other persons authorized by the certificate holder to carry arms.

(c) No certificate holder may knowingly permit any person to transport, nor may any person transport or tender for transport, any explosive, incendiary or a loaded firearm in checked baggage aboard an airplane. For the purpose of this section, a loaded firearm means a firearm which haB a Uve round of ammunition, cartridge, detonator, or powder in the chamber or in a clip, magazine, or cylinder inserted in it.

(d) No certificate holder may knowingly permit any person to transport, nor may any person transport or tender for transport, any unloaded firearm in checked baggage aboard an airplane unless—

(X) The passenger declares to the certificate holder, either orally or in writing before checking the baggage, that any firearm carried in the baggage is unloaded;

(2) The firearm is carried in a container the certificate holder considers appropriate for air transportation;

(3) When the firearm is other than a shotgun, rifle, or other firearm normally fired from the shoulder position, the baggage in which it is carried is locked, and only the passenger checking the baggage retains the key or combination; and

(4) The baggage containing the firearm is carried in an area, other than the fiightcrew compartment, that is inaccessible to passengers.

(e) No certificate holder may serve any alcoholic beverage to a person having a deadly or dangerous weapon accessible to him or her nor may such person drink any alcoholic beverage while aboard an airplane operated by the certificate holder.