Ventress v. Japan Airlines et al

Filing 210

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION 205 . Signed by JUDGE LESLIE E. KOBAYASHI on 12/27/2011. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). All participants are registered to receive electronic notifications.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
JAPAN AIRLINES, ET AL.,
)
)
Defendants.
)
_____________________________ )
MARTIN VENTRESS,

CIVIL NO. 07-00581 LEK-RLP

ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
On October 31, 2011, this Court issued its Order
Granting Defendant Japan Airlines’ Motion for Judgment on the
Pleadings (Complete Federal Preemption Under the Federal Aviation
Act) (“10/31/11 Order”).1

Before the Court is Plaintiff

Martin Ventress’s (“Ventress”) Motion for Reconsideration, filed
on November 10, 2011, seeking reconsideration of 10/31/11 Order.
Defendant Japan Airlines (“JAL”) filed its memorandum in
opposition on November 28, 2011, and Ventress filed his reply on
December 15, 2011.

The Court finds this matter suitable for

disposition without a hearing pursuant to Rule LR7.2(d) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i (“Local Rules”).

After careful

consideration of the Motion for Reconsideration, supporting and
opposing memoranda, and the relevant legal authority, Ventress’s
1

The 10/31/11 Order is available at 2011 WL 5190849.

Motion for Reconsideration is HEREBY DENIED for the reasons set
forth below.
BACKGROUND
The parties and the Court are familiar with the factual
and procedural background of this case.

The Court therefore will

only address the background that is relevant to the Motion for
Reconsideration.
On June 24, 2011, JAL filed, inter alia, its: Motion
for Summary Judgment or in the Alternative Judgment on the
Pleadings (Counts 1 and 2) (“Merits Motion”) [dkt. no. 177];
Motion for Summary Judgment that Defendant JALways Co., Ltd. Was
Not Plaintiff’s Employer (Counts 1-2) (“Employer Motion”) [dkt.
no. 179]; and Motion for Judgment on the Pleadings (Complete
Federal Preemption Under the Federal Aviation Act) (“Preemption
Motion”) [dkt. no. 181].
October 17, 2011.

The motions were set for hearing on

At the hearing, however, this Court continued

the hearing on the Merits Motion and the Employer Motion.
[Minutes, filed 10/17/11 (dkt. no. 195).]

The hearing on the

Preemption Motion went forward as scheduled, and the Court
ultimately granted the Preemption Motion in the 10/31/11 Order,
rendering the Merits Motion and the Employer Motion moot.
In the 10/31/11 Order, this Court stated that the sole
issue in the Preemption Motion was “whether the [Federal Aviation
Act of 1958 (‘FAA’)] preempts Ventress’s claims.”

2

2011 WL

5190849, at *6.

The Court ultimately ruled that:

In order to rule on Ventress’s retaliation claims,
the finder of fact will have to determine whether
JAL had “a legitimate, nonretaliatory explanation
for its acts” or whether its “explanation is
merely a pretext for retaliation.” See Mokler v.
Cnty. of Orange, 68 Cal. Rptr. 3d 568, 580 (App.
Dist. 2007) (citations omitted). That inquiry
will require the finder of fact to consider
whether or not Ventress was medically fit to carry
out his duties as a flight engineer. A flight
engineer is an airman under FAA regulations. 14
C.F.R., Subchapter D. (Airmen), Part 63
(Certification: Flight Crewmembers Other Than
Pilots), Subpart B. (Flight Engineers).
Determining whether Ventress was medically
qualified to work as a flight engineer would
intrude in the area of airmen medical standards,
which Congress intended to occupy exclusively.
Cf. Martin [ex rel. Heckman v. Midwest Express
Holdings, Inc.], 555 F.3d [806,] 811 [(9th Cir.
2009)] (“Claims regarding airspace management,
pilot qualifications and failure to warn have been
declared preempted.” (emphases added) (citing
French v. Pan Am. Express, Inc., 869 F.2d 1 (1st
Cir. 1989); Kohr v. Allegheny Airlines, Inc., 504
F.2d 400 (7th Cir. 1974); Witty v. Delta Air
Lines, Inc., 366 F.3d 380 (5th Cir. 2004))). The
Court therefore CONCLUDES that the FAA preempts
Counts I and II, the only claims remaining in
Ventress’s Complaint.
Id. at *10.

The instant Motion for Reconsideration followed.
DISCUSSION

“[A] successful motion for reconsideration must
accomplish two goals.

First, a motion for reconsideration must

demonstrate reasons why the court should reconsider its prior
decision.

Second, a motion for reconsideration must set forth

facts or law of a strongly convincing nature to induce the court
to reverse its prior decision.”

Donaldson v. Liberty Mut. Ins.
3

Co., 947 F. Supp. 429, 430 (D. Hawai`i 1996); accord Tom v. GMAC
Mortg., LLC, CIV. NO. 10–00653 SOM/BMK, 2011 WL 2712958, at *1
(D. Hawai`i July 12, 2011) (citations omitted).

This district

court recognizes three grounds for granting reconsideration of an
order: “(1) an intervening change in controlling law; (2) the
availability of new evidence; and (3) the need to correct clear
error or prevent manifest injustice.”

White v. Sabatino, 424 F.

Supp. 2d 1271, 1274 (D. Hawai`i 2006) (citing Mustafa v. Clark
County Sch. Dist., 157 F.3d 1169, 1178–79 (9th Cir. 1998)).
“Mere disagreement with a previous order is an insufficient basis
for reconsideration.”

Id.

“Whether or not to grant

reconsideration[,]” however, “is committed to the sound
discretion of the court.”

Navajo Nation v. Confederated Tribes &

Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir.
2003) (citing Kona Enter., Inc. v. Estate of Bishop, 229 F.3d
877, 883 (9th Cir. 2000)).
I.

Documents and Arguments Not Considered
The Court first notes that Ventress attached three

exhibits to the Motion for Reconsideration: Ventress’s Pilot
Contract and Letter of Acknowledgment of the Pilot Contract;
Appendices to the Pilot Contract; and a letter dated October 6,
2004 to Ventress from Pamela Steele-Nelson of the United States
Department of Transportation.

JAL objects that Ventress’s

exhibits are not authenticated.

[Mem. in Opp. at 1.]

4

Ventress

also attached eight exhibits to his reply.

The Court assumes

that JAL would raise the same objections to the reply exhibits as
it did to the exhibits attached to the Motion for
Reconsideration.
The Court need not address JAL’s objections to the
exhibits because, even if the exhibits were properly
authenticated, the Court would not consider them.

Ventress asks

this Court to reconsider its decision to grant JAL judgment on
the pleadings.

It is well settled that a court considering a

motion for judgment on the pleadings is limited to the material
in the pleadings, and the consideration of evidence outside of
the pleadings converts the motion for judgment on the pleadings
to a motion for summary judgment.

Yakima Valley Memorial Hosp.

v. Wash. State Dep’t of Health, 654 F.3d 919, 925 n.6 (9th Cir.
2011).

Whether to convert the underlying motion for judgment on

the pleadings to a motion for summary judgment is within this
Court’s discretion, see id., and this Court declines to consider
evidence outside of the pleadings in connection with Ventress’s
motion to reconsider the ruling on the Preemption Motion.
Ventress also apparently argues that JAL itself invoked summary
judgment standards in the Preemption Motion and therefore the
Court should allow him to rely on information outside of the
pleadings.

Ventress’s argument is misplaced.

Neither the

Preemption Motion nor the 10/31/11 Order invoked Fed. R. Civ. P.

5

56 summary judgment standards; both are based the standard for
judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c).

The

Court therefore will not consider the exhibits that Ventress
submitted with his Motion for Reconsideration and his reply.
Second, the Court notes that Ventress devotes a
significant portion of the Motion for Reconsideration and his
reply to argument on the issues: 1) whether JAL and Defendant
JALways, Co., Ltd. (“JALways”), and not Defendant Hawaii Aviation
Contract Services, Inc. (“HACS”), were his actual employer; and
2) whether the medical reason for his termination was either
pretextual or fraudulent.

JAL sought a summary judgment ruling

the issue of whether JAL/JALways was Ventress’s employer in the
Employer Motion.

Neither the Preemption Motion nor the 10/31/11

Order addressed this issue; the Court only ruled that the
Employer Motion was rendered moot because the Court granted the
Preemption Motion.

This Court therefore will not consider

Ventress’s arguments on the issue whether JAL/JALways was his
employer.
As to the issue whether the medical reason for
Ventress’s termination was pretextual or fraudulent, the 10/31/11
Order did not address the merits of that issue.

This Court

merely recognized that, in order to ultimately rule on the merits
of Ventress’s retaliation claim, the finder of fact would have to
consider Ventress’s claim of pretext and/or fraud.

6

This Court

did conclude that the FAA preempted Ventress’s state law claims
because ruling on the pretext/fraud issue would implicate federal
medical standards for airmen, but in making this ruling this
Court made no findings and expressed no inclinations about the
merits of Ventress’s pretext/fraud argument.

This Court

therefore will not consider Ventress’s arguments on the issue
whether the medical reason for his termination was pretextual or
fraudulent.
II.

Whether the FAA Applies
In the Motion for Reconsideration, Ventress asserts

that the FAA “applies to the United States airline industry and
the use of United States airspace by both military and civilian
aircraft; and not intended for, or imposed on foreign air
carriers.”

[Motion for Reconsideration at 2 (citations

omitted).]

Arguably, this argument is not properly before the

Court because the Court generally will not grant reconsideration
based on legal arguments that the party seeking reconsideration
could have raised in connection with the original motion.

See

Hawaii Stevedores, Inc. v. HT & T Co., 363 F. Supp. 2d 1253,
1269-70 (D. Hawai`i 2005) (citing Kona Enter., Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000)) (some citations
omitted).
In his memorandum in opposition to the Preemption
Motion, Ventress primarily argued that the “the FAA does not

7

completely preempt state law causes of action.”
1.]

[Dkt. no. 190 at

Ventress also noted that some circuits have held that, in

spite of ordinary FAA preemption of state standards of care,
state law remedies and causes of action remain available, and he
emphasized that the United States Supreme Court has recognized
very few statutes which trigger complete preemption.
5.]

[Id. at 4-

No where in his opposition to the Preemption Motion did

Ventress argue that the FAA did not apply because JAL is a
foreign air carrier.

Further, Ventress neither raised this issue

at the hearing on the Preemption Motion nor requested
supplemental briefing to address this issue.

Although this Court

arguably need not address this issue because of Ventress’s
failure to raise it in connection with the original Preemption
Motion, the Court will address it because the 10/31/11 Order does
implicitly conclude that the FAA applies in the instant case.
Ventress argues that, based on 49 U.S.C. § 40103, the
FAA only applies to the use of United States airspace.

He

contends that
the incidents that gave rise to Ventress’
complaints, simply did not occur within the
territory of the United States, which terminates
twelve (12) miles off shore of its geographical
territory. In Ventress’ Safety Reports(s)
regarding pilot Jeff Bicknell’s illness, the
incidents that gave rise to Ventress’ complaint,
began on the flight from Thailand to Japan in June
2001. A few days later, in Hawaii, Ventress
warned JAL Captain Hanami of Bicknell’s
deteriorating health. After taking-off from
Honolulu International airport, and more than
8

twelve miles off shore from the State of Hawaii
(USA) on JAL flight 95 to Hiroshima, Japan,
Bicknell collapsed at the flight controls.
[Reply at 4-5.]
First, the factual premise of Ventress’s argument is
faulty.

The basis of Ventress’s claim is the retaliation that he

allegedly experienced because he expressed concerns about Captain
Bicknell flying while incapacitated during two June 2001 flights
and because Ventress submitted internal and agency reports about
the incidents.

Ventress has not alleged that this retaliation

occurred on those June 2001 flights while in international
airspace.

Ventress’s Complaint alleges, inter alia, “On

April 12, 2002, Plaintiff MARTIN VENTRESS visited Defendant
[HACS]’s offices in Honolulu, and noticed his name on a ‘status
board’ under the ‘Termination List’.”

[Complaint at ¶ 23.]

Ventress also argues that the FAA “was not intended
for, or imposed on foreign air carriers” and was not “meant to
police the rest of the world’s airspace.”
Motion for Reconsideration at 4-5.]

[Mem. in Supp. of

Ventress bases his position

on the FAA’s definition of “air carrier” and “airman”.

[Id.]

The FAA defines an “air carrier” as “a citizen of the United
States undertaking by any means, directly or indirectly, to
provide air transportation.”

49 U.S.C. § 40102(a)(2).

An

“airman” is
an individual-(A) in command, or as pilot, mechanic, or
9

member of the crew, who navigates aircraft
when under way;
(B) except to the extent the Administrator of
the Federal Aviation Administration may
provide otherwise for individuals employed
outside the United States, who is directly in
charge of inspecting, maintaining,
overhauling, or repairing aircraft, aircraft
engines, propellers, or appliances; or
(C) who serves as an aircraft dispatcher or
air traffic control-tower operator.
§ 40102(a)(8).
First, the definition of “airmen” does not render the
FAA inapplicable to foreign air carriers.

Subsection

40102(a)(2)(B) merely gives the Administrator of the Federal
Aviation Administration the discretion over the determination of
airman status for persons whose work falls within that category
but who are employed outside of the United States.

Further, 49

U.S.C. § 44703, governing airman certificates, suggests that
Congress contemplated the issuance of airman certificates to
employees of foreign air carriers.

See 49 U.S.C. § 44703(e)

(regarding airman certificates for an alien).

The Administrator

of the Federal Aviation Administration also has the discretion to
exempt “foreign aircraft and airmen serving on the aircraft” from
certain prohibitions regarding safety, including the prohibition
against serving as “an airman with respect to a civil aircraft,
aircraft engine, propeller, or appliance used, or intended for

10

use, in air commerce”2 without the appropriate airman
certificate.

49 U.S.C. § 44711(a)(2)(A), (b).

This discretion

to grant an exemption implies that: 1) persons serving on foreign
aircraft can be “airmen”; and 2) the general rule is that the
prohibitions apply to airmen serving on foreign aircraft.
As to the definition of “air carrier”, the Ninth
Circuit has held that “the [Airline Deregulation Act’s (“ADA”)]
preemption of state regulation covers regulation of all air
carriers, whether domestic or foreign.”

In re Korean Air Lines

Co., 642 F.3d 685, 696 (9th Cir. 2011).

In so holding, the Ninth

Circuit noted:
An examination of the FAA shows that Congress’s
use of the term “air carrier” throughout the Act
does not always correspond with that term’s
statutory definition and that “air carrier” is
sometimes used to refer generally to both domestic
and foreign airlines. For example, 49 U.S.C. §
44901(i) refers to “an air carrier providing air
transportation under a certificate . . . or a
permit.” Only a domestic “air carrier” provides
air transportation under a certificate, and only a
“foreign air carrier” provides air transportation
under a permit. See id. §§ 41102, 41302. Thus,
the term “air carrier” in this context refers to

2

“Air commerce” includes “foreign air commerce”, 49 U.S.C.
§ 40102(a)(3), and
“foreign air commerce” means the transportation of
passengers or property by aircraft for
compensation, the transportation of mail by
aircraft, or the operation of aircraft in
furthering a business or vocation, between a place
in the United States and a place outside the
United States when any part of the transportation
or operation is by aircraft.”
§ 40102(a)(22).
11

both a domestic “air carrier” and a “foreign air
carrier.” Also, 49 U.S.C. § 44940(a)(2)(B)(ii)
refers to “an air carrier described in
subparagraph (A),” which in turn covers both “air
carriers and foreign air carriers,” see id. §
44940(a)(2)(A). Likewise, many of the FAA’s
subsections contain only the term “air carrier” in
their titles even though their content plainly
regulates both domestic and foreign operators.
See id. § 40129(f) (subsection entitled
“Eligibility of air carriers” refers to “air
carrier[s]” and “foreign air carrier[s]”
participating in collaborative decisionmaking
pilot programs); id. § 44940(a)(2) (subsection
entitled “Air carrier fees” authorizes the
Secretary of Transportation to impose certain fees
on “air carriers and foreign air carriers”); see
also Carter v. United States, 530 U.S. 255, 267,
120 S. Ct. 2159, 147 L. Ed. 2d 203 (2000) (noting
that title of statute may be of use when it sheds
light on an ambiguous phrase). Congress’s
occasional use of the term “air carrier” to
include “foreign air carrier” counsels strongly
that the meaning of “air carrier” is ambiguous in
the ADA’s statutory preemption provision.
Id. at 692 (alterations in Korean Air).

Thus, the Ninth Circuit

has recognized that the term “air carrier” is ambiguous in the
FAA.

In interpreting the term “air carrier” in the ADA

preemption provision, the Ninth Circuit considered the context of
the term.

Id. at 692-93 (“‘Once it is established that [a

statutorily defined term has different meanings in different
sections], the term standing alone is necessarily ambiguous and
each section must be analyzed to determine whether the context
gives the term a further meaning that would resolve the issue in
dispute.’” (quoting Robinson v. Shell Oil Co., 519 U.S. 337,
343–44, 117 S. Ct. 843, 136 L. Ed. 2d 808 (1997)) (alteration in

12

Korean Air)).

The Ninth Circuit stated:

the context in which the term appears in the
preemption provision indicates that Congress
intended that it apply to all air carriers and not
only to domestic carriers. The preemption
provision prohibits state regulation of “an air
carrier that may provide air transportation under
this subpart.” 49 U.S.C. § 41713(b)(1). The use
of the modifying phrase “that may provide air
transportation under this subpart” indicates that
the term “air carrier” is defined in a particular
way in this provision. See, e.g., Nw. Forest Res.
Council v. Glickman, 82 F.3d 825, 834 (9th Cir.
1996) (“We have long followed the principle that
[s]tatutes should not be construed to make
surplusage of any provision.” (internal quotation
marks omitted) (alteration in original)). Because
the subpart to which the phrase refers, entitled
“Economic Regulation,” has provisions regulating
both domestic and foreign air carriers, a sensible
reading of the preemption provision implies that
“air carrier” was intended to have its broader and
ordinary meaning in this section of the statute.
See 49 U.S.C. § 41101 et seq., Subtitle VII, Part
A, Subpart II.
Id. at 693 (footnote omitted).
Although Korean Air is not directly on point because it
dealt specifically with ADA preemption, which is not at issue in
the instant case, Korean Air and other cases addressing ADA
preemption are relevant to the extent that they address other
provisions of the FAA.

The analysis of those FAA provisions

provides guidance to this Court’s analysis of the FAA provisions
at issue in this case.

As this Court previously noted in the

10/31/11 Order, the FAA does not have an express preemption
clause.

Ventress, 2011 WL 5190849, at *6 (citing Heckman v.

Midwest Exp. Holdings, Inc., 555 F.3d 806, 808 (9th Cir. 2009)).
13

The Court therefore looks to the context of the FAA’s provisions
governing medical standards for airmen to determine the term “air
carrier” has the narrow definition stated in § 40102(a)(2) or
“its broader and ordinary meaning” encompassing domestic air
carriers and foreign air carriers.
693.

See Korean Air, 642 F.3d at

The Federal Aviation Administration’s pervasive regulations

governing the medical standards applicable to airmen are
contained in 14 C.F.R. Chapter I, Subchapter D., Part 67.

The

statutory authority for these regulations is 49 U.S.C. §§ 106(g),
40113, 44701–44703, 44707, 44709–44711, 45102–45103, 45301–45303.
See, e.g., 14 C.F.R. § 67.1.

The only one of those statutes that

expressly addresses “foreign air carriers” is 49 U.S.C. § 45102,
governing alcohol and controlled substances testing programs.
See 49 U.S.C. § 45102(a).3

3

Section 45102(2) states, inter alia:
the Administrator of the Federal Aviation
Administration shall prescribe regulations that
establish a program requiring air carriers and
foreign air carriers to conduct preemployment,
reasonable suspicion, random, and post-accident
testing of airmen, crew members, airport security
screening personnel, and other air carrier
employees responsible for safety-sensitive
functions (as decided by the Administrator) for
the use of a controlled substance in violation of
law or a United States Government regulation; and
to conduct reasonable suspicion, random, and
post-accident testing of airmen, crew members,
airport security screening personnel, and other
air carrier employees responsible for
safety-sensitive functions (as decided by the
Administrator) for the use of alcohol in violation
(continued...)
14

Ventress essentially asks the Court to conclude that
the medical regulations enacted pursuant to the FAA do not have
preclusive effect as to foreign air carriers because, except for
the statute addressing controlled substance testing, the statutes
authorizing the medical regulations refer only to “air carriers”
and not to “foreign air carriers”.

Insofar as the Ninth Circuit

has held that the term “air carriers” is ambiguous in the FAA,
this Court must look to the context that the term appears in to
interpret the meaning of “air carriers” as used the statutes at
issue in this case.

For example, 49 U.S.C. § 44701(a) states

that “[t]he Administrator of the Federal Aviation Administration
shall promote safe flight of civil aircraft in air
commerce . . . .”

Section 44711(a) states, in pertinent part:

A person may not-. . . .
(2) serve in any capacity as an airman with
respect to a civil aircraft, aircraft engine,
propeller, or appliance used, or intended for
use, in air commerce-(A) without an airman certificate
authorizing the airman to serve in the
capacity for which the certificate was
issued; or
(B) in violation of a term of the
certificate or a regulation prescribed
or order issued under section 44701(a)
or (b) or any of sections 44702-44716 of
this title[.]
49 U.S.C. § 44711(a).

As previously noted, the term “air

3

(...continued)
of law or a United States Government regulation.
15

commerce” includes the commercial airlines transporting
passengers between the United States and international
destinations.

49 U.S.C. § 40102(a)(22).

Based on the pleadings, it is clear that, during the
period at issue in this case, JAL was engaged in air commerce.
[Complaint at ¶ 14 (discussing JAL flight from Honolulu, Hawaii
to Hiroshima, Japan); CV 03-00451,4 Japan Airlines and JALways
Co., Ltd.’s Answer to Complaint (“Answer”), filed 9/9/03 (dkt.
no. 26), at ¶ 11 (admitting that Ventress “was acting as Flight
Engineer on Defendant JALways flight number JO095 from Honolulu,
Hawaii to Hiroshima, Japan with a continuation to Osaka Japan”).]
Thus, provisions such as § 44711(a) apply to JAL and interpreting
the term “air carrier” to have “its broader and ordinary meaning”
encompassing domestic air carriers and foreign air carriers would
be consistent with the application of provisions such as §
44711(a).

See Korean Air, 642 F.3d at 693.
Further, interpreting the term “air carrier” in such a

way as to eliminate the preclusive effect of federal medical
standards for airmen as to foreign air carriers would be
inconsistent with the extensive federal occupation of that area
and would lead to absurd results.

4

Cf. Korean Air, 642 F.3d at

The Complaint, filed on August 20, 2003 and assigned CV
03-00451 SPK-LEK, contains Ventress’s claims as well as claims by
Jack Crawford. Ventress’s claims were subsequently severed from
Crawford’s.
16

693 n.6 (“We decline to apply a general presumption against
preemption here because the ADA preemption provision involves
preclusion of state regulation in ‘an area where there has been a
history of significant federal presence,’ namely navigable
airspace.” (citing United States v. Locke, 529 U.S. 89, 108, 120
S. Ct. 1135, 146 L. Ed. 2d 69 (2000); Skysign Int’l, Inc. v. City
& Cnty. of Honolulu, 276 F.3d 1109, 1115–16 (9th Cir. 2002))).
In a case addressing ADA preemption, the Eastern
District of New York stated:
Finally, it bears noting that excluding foreign
air carriers from the scope of ADA preemption
would result in anomalous rulings. “A statute
should be interpreted in a way that avoids absurd
results.’” (sic) United States v. Venturella, 391
F.3d 120, 126 (2d Cir. 2004) (citations omitted);
see also Armstrong Paint & Varnish Works v.
Nu-Enamel Corp., 305 U.S. 315, 333 (1938). One
such result here would be that while domestic
airlines would be subject solely to federal laws,
foreign airlines, obliged to follow both federal
and state regulations, would be subject to an
arbitrary quilt of inconsistent regulations,
requirements, and restrictions across the fifty
states. In addition, it is highly unlikely that
Congress intended to allow states to impose
different standards upon foreign air carriers than
domestic airlines in violation of the United
States’ obligation under various treaties to
secure equal treatment of domestic and foreign
airlines. See, e.g., Convention on International
Civil Aviation art. 11, Dec. 7, 1944, 61 Stat.
1180, TIAS 1591, 15 U.N.T.S 295 (providing for
application of laws and regulations “without
distinction as to nationality” of signatory
state’s aircraft); Treaty of Friendship, Commerce
and Navigation, U.S.-Japan, arts. V, VII, XXII,
Apr. 2, 1953, 4 U.S.T.2063, 2068, 2069 (providing
that the United States and Japan will ensure that
each other’s companies, inter alia, will be
17

treated in terms “no less favorable” than
treatment accorded to their own companies).
Accordingly, applying ADA preemption to both
foreign and domestic airlines avoids an otherwise
absurd result.
In re Air Cargo Shipping Servs. Antitrust Litig., No. MD
06-1775(JG)(VVP), 2008 WL 5958061, at *23 (E.D.N.Y. Sept. 26,
2008) (footnote omitted).

Interpreting the term “air carriers”

to include both domestic air carriers and foreign air carriers is
the more reasonable interpretation of the term “air carriers” as
used in the FAA provisions authorizing the federal regulations
governing medical standards for airmen.
For these reasons, the Court rejects Ventress’s
argument that the FAA does not apply to JAL because it is a
foreign air carrier.

Ventress has not established any grounds

for this Court to reconsider the 10/31/11 Order.
CONCLUSION
On the basis of the foregoing, Ventress’s Motion for
Reconsideration, filed on November 10, 2011, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, December 27, 2011.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
MARTIN VENTRESS V. JAPAN AIRLINES, ET AL; CIVIL NO. 07-00581 LEKRLP; ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION

18