[00:00:01] Speaker 01:
Do I need to push this button? You're all set.

[00:00:06] Speaker 01:
Okay, good morning. I would like to reserve five minutes for rebuttal, please. Okay. It's an honor to be before you.

[00:00:16] Speaker 01:
May my testimony please the courts.

[00:00:19] Speaker 01:
This is a case of first impression, where the convergence of facts are unique.

[00:00:26] Speaker 01:
The laws in play are unique.

[00:00:31] Speaker 01:
The question is, can corporate interests implicate an elected official's elected constitutional duties?

[00:00:45] Speaker 01:
As a joint actor, five years ago today, coincidentally, it's amazing, five years ago today, they banned me without fair notice.

[00:00:56] Speaker 01:
in violation of a policy that required them. They had a duty to honor. And they violated this mandate in five different ways.

[00:01:10] Speaker 01:
The lower court closed the door.

[00:01:15] Speaker 01:
By violating motion to dismiss standards, they just shut the door.

[00:01:20] Speaker 01:
There were five reversible errors.

[00:01:23] Speaker 01:
I have them well outlined on the reply on page number 10.

[00:01:27] Speaker 01:
They include violating rule FRE 902. Instead of looking at the evidence, they tossed it. They set it aside. And I would like to point out that 50% of the self-authenticating data that they pushed aside was government data. It was self-authenticating. It was actually greater if you include the police video, a visit of X. They violated the standards in addition to the motion to dismiss and the motion to leave standards.

[00:02:02] Speaker 01:
They misapplied Rule 46, and they converted it into a 77 rule.

[00:02:09] Speaker 01:
They failed miserably to analyze state action doctrine. Can I ask you about that?

[00:02:18] Speaker 03:
Under Visit X, absolutely. I think that's really critical to your argument. Could you maybe just pause there and drill down and give us your best argument regarding Alaska Airlines serving as a state actor here?

[00:02:33] Speaker 01:
Serving as a state actor. Okay, so I think referring to the Excerpt of Records 118, there's about seven pages there.

[00:02:45] Speaker 01:
Under the mandate, they were supposed to, it was February 5th, 77 days after they were warned, they were told to stop the no exemption policy.

[00:02:59] Speaker 01:
they were told to provide accommodations for those with ADA disabilities that had a valid exemption.

[00:03:04] Speaker 03:
Okay. So you're talking about Alaska Airlines. Alaska Airlines. And you're talking about the mask mandate, kind of the height of the epidemic. Correct. Correct. And your contention, you've explained this in the briefing, is that there were supposed to be, well, there's a period where there were exemptions, and then you have alleged there's a period where that changed. And I think your contention has to do with you had a medical permission and there was a kerfuffle over that.

[00:03:30] Speaker 01:
I had a valid mask exemption that under my affidavit, and it's really important that you read my affidavits, it's ER 55 to 67, where I...

[00:03:41] Speaker 01:
under oath, you know, basically validated, you know, my statements, which really summarizes... We have read that carefully.

[00:03:47] Speaker 03:
Thank you, Your Honor. Of course. But we're looking for the legal principle now, because you're not suing the state of Alaska or the federal government, you're suing Alaska Airlines. Correct. So could you explain your theory of that Alaska Airlines served as a state actor here?

[00:04:02] Speaker 01:
Okay, so basically what Alaska Airlines was doing is they were... alleging to uphold this, um, this mandate basically. And I had a man, you'll see in the video X that I had a mask on at all times. And, uh, basically what they did is that, uh, They were acting outside the mandates. On November 15th, this is pre-mandate, they told me to wear two masks. On December 1st, they targeted me and monitored me.

[00:04:34] Speaker 01:
I was warned they were going to be monitoring me. On January 15th, I asked for exemption. It was denied.

[00:04:40] Speaker 00:
Well, to get at the state actor question, to the extent that you allege that they are acting outside the mandate, in those sort of outside conditions, actions, what's the connection to any sort of government official?

[00:04:55] Speaker 01:
They were definitely under 19... That's going to happen on April 22nd. So basically, they were banning me based on the mandate... So they were joint actors enforcing it.

[00:05:09] Speaker 00:
Okay, but let's get a little bit more specific about this. So on the one hand, you're saying that Alaska Airlines was enforcing a mandate, and clearly the mandate has a connection to government officials, right? I understand that. And then you also just said that they were doing things beyond the mandate or outside the mandate that you are challenging. And for those things, what is the string? What is the connection to any sort of government authority?

[00:05:37] Speaker 01:
Okay, so when they went and summons the police, a lot of it is in video X. It's outlined very, very carefully. You'll see the coordination where they go and they summon the police. I was peacefully sitting there getting ready to board. And you'll see this. The last eight minutes is critical of exhibit X where they went, summons police. They came. They confronted me. They confronted me very, and then as I tried to peacefully get around them with a mask on compliant, they said they were going to cancel my ticket if I didn't put a mask on.

[00:06:09] Speaker 00:
So that's what I'm trying to get at. So an Alaska Airlines employee says, we're going to cancel your ticket. And you argue that the mandate didn't require that. That was their own choice outside the mandate. Is that right? Correct. Okay. So then for that choice that Alaska Airlines is making, we're going to cancel your ticket. What tells us that the state of Alaska or anybody who is associated with the state of Alaska wanted the airline to do that?

[00:06:36] Speaker 01:
Basically, what I can tell you is that the federal government has jurisdiction only in the two federal airports in D.C. Other than that, they're state and locally owned. So the only mandate that could have been in play in the airport where they said the incident occurred that led to the ban...

[00:06:56] Speaker 01:
was when they threatened to cancel my ticket, it was Governor Dunleavy or a local mandate. Because it happened in an airport that's owned by the state. They're saying the incident happened because, I can tell you, the flight was 100% peaceful. I went ahead and boarded the plane, 100% peaceful, got off. I honestly thought it was a joke when I got banned. When I got the email, I said, this is crazy. You know, I knew that Dunleavy's House Bill 76, which the president said I had killed, you know, in the Senate, I knew it was on the floor, you know, the following day.

[00:07:26] Speaker 01:
the following Monday. So it was just really shocking to me. It was a critical bill for me because I was trying to protect constitutional and individual rights during this time as an elected official. Instead, I got this email that I was banned, and it was availed. They didn't say specifics. There was no fair notice. They were warned in five ways. They were supposed to educate how to get exemptions. They failed. They were said to stop their no-exemption policies. It failed. This is the Consumer Protection February 5th.

[00:07:58] Speaker 01:
They said that they were supposed to do an assessment prior to ban. They failed. They gave me absolutely no fair notice before this. They discriminated. They targeted me. And they denied a senator, me as a senator, on the monopoly carrier to go fulfill that I was in furtherance of my constitutional duties. They blocked any meaningful access to the Capitol to and from. And I think that's absolutely critical because I had a valid CDC mask exemption medical doctor.

[00:08:31] Speaker 01:
And I think it's really, really important for you guys to know that in the airport, the only federal jurisdiction is actually TSA screening and the conveyances. Other than that, it's under state and local control.

[00:08:42] Speaker 02:
When you say, but when you say, I don't, I mean, I understand that you were blocked. When you say they blocked, who do you mean by they?

[00:08:52] Speaker 01:
The Alaska Airlines blocked. And what they did, they didn't give me fair notice. They were actually said not to deny transportation over and over again. Even after they did an assessment, the mandate and the consumer protection says the least restriction option according to the passenger.

[00:09:13] Speaker 02:
Okay. I just want to make sure all the communications you got were from Alaska.

[00:09:17] Speaker 01:
They actually sent me an email, and I was only allowed to talk to security. I guess I was such a danger. They alleged without any assessment that was required, and I was only allowed to talk to security from that point on. They directed me. Jeremy Hort, that's all I could talk to from that point on. So basically they weaponized the mandate, and still it's underveiled. I still to this day don't know specifically what happened and why. The only due process that happened was behind private corporate doors, and I think that's very, very important.

[00:09:51] Speaker 03:
Do you want to reserve the rest of your time? Five minutes. Yeah, a little more. Yes, thank you, Your Honor.

[00:09:56] Speaker 01:
You bet.

[00:10:11] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:10:16] Speaker 04:
I'm glad we're starting, actually, with state action, because the Section 1983 claim is obviously very significant here. It's the linchpin to the 1985 claim, 1986 claim. And because the emergency use authorization claim is just patently frivolous, these are the only federal claims in the case.

[00:10:41] Speaker 04:
Ms. Reinbold is incorrect about the way the airport works.

[00:10:48] Speaker 04:
Incorrect that TSA only is responsible at two airports in Washington, D.C. That is manifestly not so. What happened was after 9-11, Congress passed the Aviation Transportation Security Act, which transferred security responsibility at airports from the FAA to the DHS and in turn to TSA.

[00:11:18] Speaker 04:
TSA became responsible for ensuring security at all airports in the United States. The fact that Juneau or Anchorage are city or state owned is of no consequence whatsoever. Virtually all are in our major airports are SFO is owned and operated by the city and county of San Francisco Oakland airport by the port of Oakland that's the way it works.

[00:11:48] Speaker 04:
Out said was passed and the power was delegated to TSA the TSA administrator was in turn given the authority to enlist local police to support the federal police and so it was local police supporting federal police, not the reverse. If one looks at Ms. Appellant's video X, which we objected to, it's highly edited, it has voiceover, it's very argumentative.

[00:12:21] Speaker 04:
But if you just look at it, turn the sound off, you'll see what's there is consistent. There are a bunch of federal transportation security officers and one little local police guy. And that's the way it works. So there was no state action as posited.

[00:12:43] Speaker 04:
Ms. Appellant has referred to an Alaska mask mandate. I'm not even sure what that is.

[00:12:53] Speaker 04:
She's pointed to a not even one-page memo. It's a memo from the governor to His employees, state employees, not to Alaska Airlines or public businesses, and it's entitled workplace policy. That's not a mask policy for the airline at the airport. So the whole premise that there was state action, that Alaska was doing anything with Alaska Airlines was doing anything with the state of Alaska is just not there.

[00:13:27] Speaker 02:
It is. I just want to make sure I understand because Alaska is a very interesting place.

[00:13:33] Speaker 02:
It is correct, isn't it, that the only practical way to get from Anchorage to Juneau is by Alaska Airlines?

[00:13:43] Speaker 04:
I've never had the honor of being there. I will take that as true.

[00:13:50] Speaker 04:
You're not contesting that. I'm not contesting that, but I don't think it's relevant.

[00:13:56] Speaker 04:
And all of the mandates that Appellant was referring to are federal mandates. I mean, it started with President Biden's executive order the day after he was inaugurated. It was followed by a CDC order, which was followed by a TSA order, which was then followed by a DOT order. And it's the DOT order that told airlines, okay, This is what you got to do now that we have the lay of the land. We know what's going to be happening.

[00:14:27] Speaker 04:
These are the things you need to do and what you can do to conform to the mask mandate, which was from the CDC and also the relevant federal aviation anti-discrimination law, which is the Air Carrier Access Act. He said, you do these things and, you know, presumably you're doing the right thing. And they did.

[00:14:53] Speaker 00:
Is there any allegation or fact anywhere in the record to indicate that there was any communication between a state official and Alaska Airlines or any directive from a state official to Alaska Airlines beyond Alaska's own mask policy?

[00:15:10] Speaker 04:
Absolutely not.

[00:15:12] Speaker 04:
And the other problem with the 1983 claim is that no constitutionally protected right has been identified. There's no constitutional right to fly. There's certainly no constitutional right to fly Alaska Airlines.

[00:15:36] Speaker 03:
She's arguing due process. I think she's arguing that there was a lack of notice.

[00:15:42] Speaker 04:
And a due process, she's not allowed to have due process in, she called it behind closed doors in a board meeting at Alaska Airlines. There's no due process to extend there.

[00:15:57] Speaker 04:
By inference, the record is that there was notice. Ms. Appellant refers to having to click boxes as she's checking in. Well, that's acknowledging that. the mask and other policies that the airline maintained. I want to also address the issue of Ms. Appellant continually says she had a valid mask mandate. That's not true.

[00:16:25] Speaker 04:
Mask exemption, I apologize. She had a doctor's note. And the doctor's note was, first of all, never shown to Alaska. But more importantly, a doctor's note didn't qualify you for a mask exemption, at least not with Alaska Airlines. And so pursuant to that DOT order that I mentioned that told airlines, you can do this, this, and this, and you'll be complying with the law. They specifically said, you can ask for recent PCR test results.

[00:16:59] Speaker 04:
You can ask for medical documentation if necessary.

[00:17:06] Speaker 04:
All the things that the record, and particularly I think the early complaint in this case, clearly show the appellant just pushed back on. I mean, she thought that was an invasion of her privacy.

[00:17:20] Speaker 03:
So, you know, there was a procedure, and again... At the time this happened, forgive me for interrupting, at the time this happened, what was the status of any exemptions?

[00:17:32] Speaker 03:
Was the mask mandate, the federal mask mandate, situated at this point where it would have been possible for a passenger to say, I have this need for an exemption?

[00:17:41] Speaker 04:
Yes, Your Honor. I mean, again, this complaint sort of spans a long period of time from 2020 to about April 2020.

[00:17:49] Speaker 03:
I'm just talking about the day of the incident when she referred to the evidence in the record. So she referred to having an exemption or a note from her physician. And I think what you're saying is that on that day, it would have been possible for a passenger to have one. I appreciate you said that it wasn't shown. I appreciate that. I understand that.

[00:18:08] Speaker 03:
But I just wanted to make sure that that was the status quo on that day.

[00:18:11] Speaker 04:
Yes, Your Honor is correct. You would have needed, however, to have gone through the process.

[00:18:17] Speaker 04:
In advance, you couldn't just show up at the airport and say, hi, I have a mask exemption, unless you had gone through the process and that got put into your reservation record. And so when you're there, they can pull it up and see, okay, you don't need a mask.

[00:18:39] Speaker 04:
Then, well, I think if...

[00:18:43] Speaker 04:
The federal claims are not sustainable and I submit they absolutely are not with no amount of amending is going to. Bring state action into this or create a constitutional right that was infringed.

[00:18:58] Speaker 04:
The emergency use authorization has no application to airlines and their masking policies to the federal claims. That raises an issue, which is not before the court that the trial court never reached it because it didn't need to. But if those claims are out, then there would have to be, and the court were to remand, which it should not on the other claims, there would be a need to consider whether there's supplemental jurisdiction.

[00:19:31] Speaker 04:
With respect to the state claims, I don't see how those are sustainable at all.

[00:19:37] Speaker 04:
That's been thoroughly briefed.

[00:19:42] Speaker 04:
And I think that the case was ultimately dismissed and judgment entered on 2 bases one basically is a sanction for not complying with court orders and secondly for not meeting the pleading standards and the phone and factors so we have phone and factors and for the factors.

[00:20:05] Speaker 04:
The Fomin factors under Rule 15 and Fomin v. Davis, I think the parties joined those issues. With respect to the Furtick factors, which have to do with a Rule 46 dismissal, I didn't see that the appellant said anything about that.

[00:20:30] Speaker 03:
Let me just check to see if my colleagues have any questions for you.

[00:20:36] Speaker 03:
I don't think we do.

[00:20:37] Speaker 04:
If I could just make one final point. Of course. There's just a kind of fundamental fairness issue here, too, in terms of rule eight, maybe it's technical in some sense, and all the other rules are technical, but they serve important purposes. So I represent eight individuals who were personally sued by appellant, and they have this case hanging over them, and We can't tell what is alleged against them.

[00:21:07] Speaker 04:
If you go through the complaint, there's no allegations that X did A and Y did B. And that's just not fair to them. And with that, I urge the court to affirm.

[00:21:24] Speaker 03:
Thank you for your argument.

[00:21:25] Speaker 04:
Thank you.

[00:21:38] Speaker 01:
First of all, I would like to say I refute many things that he said. There were multiple issues of genuine fact that are in dispute that barred a motion to dismiss. There are numerous ones. When justice.

[00:21:53] Speaker 01:
requires, it's supposed to be liberally granted leave to amend. My third amend and complaint, where I focused and honed in on like Dennis versus Sparks, joint action, their exact places in the 1983 that, Your Honor, that you asked, I honed in very, very specifically on those.

[00:22:14] Speaker 01:
He is an error. If you read the federal mandate, they clearly say that Every single one of them excludes local jurisdiction. There's the military and then the D.C. where they're totally under federal control. But other than that, they're under local and state jurisdiction. The mandates, every single one of them, irregardless of whether it's a state mandate, a local mandate, or the federal mandate, it doesn't really matter. Because the bottom line is they were applied in their own jurisdiction.

[00:22:47] Speaker 01:
and that the federal ones excluded the local and state jurisdiction, and that Ted Stevens Airport is state jurisdiction, and that Juneau is under local jurisdiction. And it was the director, it was TSA and the director of the management that told me that TSA, even as I came here, said that they had jurisdiction only in the screening area and on the conveyances. So that, again, is another factual dispute that would have barred the motion to dismiss.

[00:23:17] Speaker 03:
Opposing counsel is right that there was one of the reasons for dismissing here and disallowing leave to amend was failure to comply with the rules, the pleading rules, the procedural rules. And I'm wondering what your response is to opposing counsel's point that the amended complaint doesn't put the individual defendants on notice of what they did.

[00:23:42] Speaker 01:
Well, Your Honor, Rule 8 actually just said it, the pleading phase, because we've never had a hearing. We've never had discovery. I've never even met him before.

[00:23:50] Speaker 01:
We have had nothing in five years. And so the notice of pleading, it just has to be on fair notice. They have had, I mean, 26 exhibits.

[00:24:01] Speaker 01:
If they're not cognizable, I'm sorry, but why would they do a 75-page reply? I genuinely believe they're playing ignorance. It's not that they're not cognizable. They're just playing ignorance. And they excluded the most important, the federal mandate from February 5th that identified they were supposed to notify. passengers how to get exemptions, they failed. That required it. And 77 days later, after failing five different ways that mandate, they banned me. And they were told immediately that they had to update their policies and stop the no exemption policy, which I have it on recorded multiple times, by the way, that I was respectful and just asserting my rights.

[00:24:44] Speaker 01:
So the bottom line here is that I would like to state that that the facts are in my favor. The law is on my side.

[00:24:55] Speaker 01:
They were warned not to deny transportation. They knew they were the monopoly carrier. They knew as an elected official I was dependent upon them. Instead, they decided to weaponize the mandate. They targeted me.

[00:25:09] Speaker 01:
They had no intention of ever honoring my mask exemption, and I promise I was always willing to show that. It's in my affidavit. And I carried it with me.

[00:25:22] Speaker 01:
Under the joint, they were joint actors when they went and summoned the police and summoned TSA and came and confronted me when I was peacefully sitting there. As I tried to peacefully board, they threatened to cancel my ticket if my mask wasn't on. My mask was on and it was up. That's why Video X is police video. It is government video. Yes, I overlaid the quick recording that I took, and they're from different cameras. But it is a valid, and then at the very end, just for clarity, I explained what was going on.

[00:25:56] Speaker 01:
It's very important to use that to assess joint action.

[00:26:03] Speaker 01:
So basically, Your Honors, what I'm asking you to do, this ban made international news. It is of great public interest.

[00:26:14] Speaker 01:
Can a private corporation that gets federal money They're stating they're upholding mandates. It doesn't matter which mandate. They're still joint actors. And the bottom line here is that no appellate court has addressed the fact, can a monopoly carrier ban a sitting senator? while enforcing both Biden and Dunleavy mandates or local mandates with airport and police coordination.

[00:26:45] Speaker 01:
This case involves unique distinguishing facts under unique mask mandates in play. My ask is narrow. I'm asking for remand with proper adjudication of existing laws.

[00:27:03] Speaker 01:
In summary, a private corporation should not be allowed to weaponize the mandates, summons police while violating 14 CFR 382-19. There was a whole bunch of 14 382s that they were violating. This is not private conduct. This is joint action. That is exactly what 1983 was written to prevent.

[00:27:29] Speaker 01:
So, Your Honor, I'm asking for remand with clear, Your Honors, I'm asking for remand with clear directions.

[00:27:39] Speaker 01:
This is a golden opportunity.

[00:27:43] Speaker 01:
You need to answer the question, may joint actors...

[00:27:50] Speaker 01:
that get federal money, saying they're upholding a federal mandate, can they violate 1983 civil rights?

[00:27:59] Speaker 01:
And then the only due process that's given is behind closed corporate doors.

[00:28:06] Speaker 01:
This case is very important, and it goes far behind me that the trajectory of my life, it's going to have broad impacts. It's a very important decision. I pray and hope that you will weigh it heavily, and what you do is going to matter in the future. And with that, thank you. It's an honor to be before you.

[00:28:24] Speaker 03:
Thank you for your advocacy. You're well over your time, so I'm going to stop there. I want to thank you both. We'll take that case under advisement, and we'll get your decision just as soon as we can. We'll stand in recess.

[00:28:44] UNKNOWN:
All persons having had business with the Honorable of the United States Court of Appeals for the Ninth Circuit will now depart for this court.