### BEFORE THE

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

May 3 , 2015

___________________________________ JONATHAN PARKER )

)

Complainant, )

)

)

v. )Docket DOT

- OST

- 2015

- 0093

)

) First Amended Third Party

SAUDI ARABIAN AIRLINES ) Complaint Pursuant to

) 14 C.F.R. 302.404

Respondent, ) (Request for

_________________________________ ) Enforcement Action)

Communications with respect to this complaint should be sent to:

JEFFREY A. LOVITKY

Attorney at Law

1776 K St., NW, Ste. 800

Washington, D.C. 20006

Tel: (202) 429

- 3393

Facsimile: (202) 318

- 4013

Email: Lovitky@aol.com

Attorney for Complainant

### First Amended Third P arty C omplaint

1 INTRODUCTION

1. The complainant , a dual citizen of the United States and the State

of Israel, wishes to fly from New York to India on Saud i Arabian

Airlines (hereinafter “Saudia”) . Saudia frequently offers the least

expensive service between New York and India. Complainant alleges

that he may be subject to detention, imprisonment, or other official

punishment if his Israeli passport were revealed while transiting through

either Riyadh or Jeddah on his way to India

. Complainant further alleges

that Saudia will not permit Jewish passengers to ca rry aboard the aircraft

the religious articles that are required to fulfill his obligat ions as an

observant Jew

2. The paramount obligation of the Secretary of Transportation is to

ensure the safety and security of passengers in air commerce. 49 U.S.C. §

40101(a)(1). The Secretary must obtain assurances that dual U.S. and

Israeli citizens will not be subject to any form of punishment or coercion

while waiting in the transit areas of Saudi Arabian airports for their

connecting flights. The Secretary must also obtain assurances that such

persons will not be subject to harassment or intimidation of any type

while on board any Saudi a flight from the United States.

### First Amended Third P arty C omplaint

2 3. If the Secre tary is unable to obtain such assurances, then the

Secretary must pursuant to the authority conferred upon him by 49

U.S.C. § 41304(a), revoke the permit granted to Saudi a to provide

passenger service from airports in the United States. The Secretary would

effectively be endangering the safety and security of dual United States

and Israeli citizens by failing to take such action

.

4. In the interim and while these proceedings are pending, the

Secretary should immediately order Saudi a to inform the public of any

restrictions imposed upon dual U.S. and Israeli citizens , as well as upon

Jewish persons . 49 U.S.C. § 41712(a). Failure to provide such warning

could also endanger the personal security of these persons if they were to

be subjected to criminal sanctions under Saudi law.

STATEMENT OF FACTS

5. Complainant is a Jewish citizen of the State of Israel, and is also a

citizen of the United States. He resides in Jerusalem, which is the capital

of the State of Israel. His occupation is a physician. Complainant was

born in the United States, and immigrat ed to the State of Israel in 1999.

6. Complainant is an observant Jew , who adheres to the requirement

to lay Tefillin on his arm and forehead every weekday morning. Tefillin

are a set of two black leather boxes containing scrolls of parchment

### First Amended Third P arty C omplaint

3 inscribed with verses from the Torah , which is the core holy book of the

Jewish religion. The requirement to lay Tefillin applies even while

traveling. Therefore, complainant will lay Tefillin on the airplane or in

the airport transit area if he is traveling during the morning hours

.

7. Saudi a is registered as a foreign corporation in the State of

Virginia, whose principal executive office is located at 8081 Wolftrap

Road, Suite 200, Vienna, VA. The airline is also registered as a foreign

corporation in the State of New York. According to its website, Saudia

maintains offices at the following locations: New York’s JFK Airport;

11301 W. Irving Park Road, Franklin Park, Il., 5718 Westheimer Road,

Suite 1090, Houston, Texas, and 9841 Airport Boulevard, Suite 1002,

Los Angeles, CA.

8. Saudi a is owned by and is an instrumentality of the government of

Saudi Arabia, and must adhere to all laws and regulations issued by the

government of Saudi Arabia. The policies of the Saudi government

concerning such matters as dual U.S. and Israeli citizens and the

possession of non

- Islamic religious articles are also the policy of Saudia

.

9. Three U.S. airports are currently serviced by Saudi Arabian

Airlines for passenger flights, i.e., New York Kennedy, Washington

Dulles, and Los Angeles International. Saudi a carries passengers to cities

### First Amended Third P arty C omplaint

4 around the world from these three airports, transiting through either

Riyadh or Jeddah.

10. Transit passengers on Saudi a are not permitted to leave the transit

area of the airport in Riyadh or Jeddah, unless they have a visa to enter

into Saudi Arabia. U.S. citizens who are transiting through Saudi Arabia

are not required to obtain a visa, unless their scheduled layovers in Saudi

Arabia are 12 hours or longer.

11. The U .S. State Department website states as follows: “ Air travelers

may find lower

- cost tickets between countries that include long layovers

in Saudi airports. Be advised that Saudi Arabia does not grant transit

visas to air travelers, so any layover wil l be spent entirely in the airport .”

http://travel.state.gov/content/passports/english/country/saudi

arabia.html

.

12. Saudi a markets directly to U.S. citizens by selling tickets on their

U.S. website, as well as by selling tickets through ot her third party ticket

agents, e.g., Expedia, Priceline, etc. These tickets are marketed both to

U.S. passengers whose final destination is Saudi Arabia, as well as to

passengers whose final destination is outside of Saudi Arabia and who

are merely transi ting through Saudi Arabia.

### First Amended Third P arty C omplaint

5 13. The United States government, through the Export

- Import Bank of

the United States, has financed some of the aircraft used by Saudia.

14. On April 12, 2015, complainant contacted the Saudi a reservations

office and advised the representative that he was interested in flying on

Saudi a from New York’s JFK airport to India, transiting through either

Riyadh or Jeddah. Saudi a frequently has the lowest fares of a ny carrier

on flights from New York to India. He further advised the representative

that he was a dual citizen of both Israel and the United States . The

representative advised him that he could fly and did not need a transit

visa as long as his layover in Saudi Arabia was for less than 12 hours.

15. Complainant was uncertain whether the representative , who did

not seem to speak English well, comprehended that he was an Israeli

citizen. He called back and spoke with a second representative, who

asked whether c omplainant would be flying with his U.S. or his Israeli

passport. Complainant responded that he would be flying with his U.S.

passport , and that he would keep his Israeli passport in his bag.

16. The second representative checked with his supervisor, and

adv ised complainant that Israeli passport holders are not permitted to

enter into Saudi Arabia

, even for transit purposes. He said that the airline

could accept him as a passenger only if he received permission from the

### First Amended Third P arty C omplaint

6 Saudi Embassy to take the flight

. See Declaration of Jonathan Parker

,

dated April 13, 2015

.

17. Passengers attempting to purchase tickets on the Saudi a website

must select their “ nationality ” from a drop down box. There is an entry

for Palestine, but not Israel, in the dro p down box.

18. Saudi Arabia is a country that has been repeatedly designated by

the U.S. Department of Treasury as a country that requires or may require

participation in, or cooperation with, the boycott of Israel. See e.g. 80

Fed. Reg. 17152, March 31, 2015; 79 Fed. Reg. 73141, December 9,

2014; 79 Fed. Reg. 51224, August 27, 2014

19. In response to an inquiry from Senator Chris Murphy of

Connecticut, the Saudi Ambassador to the United States stated that Israeli

citizens are not permitted to enter into Saudi Arabia, even for transit

purposes. The Ambassador further stated that U.S. citizens who become

Israeli citizens and who travel with an Israeli passport would be subject

to the same restrictions as other Israeli citizens. See letter from the U.S.

Department of Transportation to Senator Christopher Murphy, dated

November 6, 2013 ; see also attach ed letter from legal counsel to the

Saudi government dated April 29, 2015, as well as enclosures thereto.

### First Amended Third P arty C omplaint

7 20. On the English website of the Saudi Arabian Ministry of

Commerce and Industry is a document entitled Israel Boycott Law . This

document states in part as follows:

a. Natural or legal persons are prohibited, whether personally or

through agents, to conclude ag reements with bodies or persons residing

in Israel or affiliated thereto by virtue of nationality or working for the

account or in the interest of Israel wherever they may reside, if the

subject of agreement is business transactions, financial operations o r any other kind of deal ing whatever its nature may be.

b. No Israeli commodities or products of whatever kinds and no

Israeli paper money or other movable assets shall be brought in or

imported into the Kingdom.

21. Companies that violate these provisions are subject to financial

penalties. Employees of companies who are responsible for such

violations are subject to imprisonment

.

22. A copy of this law may be retrieved from

http://www.mci.gov.sa/en/LawsRegulations/SystemsAndRegulations/Pro

vinceIsraelSystem/Pages/28

- 2.aspx

23. Saud ia will not sell tickets or provide transportation to dual U.S

.

and Israeli citizens absent special permission from the Saudi government

.

Complainant would be subject to punishment for illegal entry into Saudi

Arabia if his Israeli passport were observed during a routine search of his

baggage

, or if he were to disclose that he is an Israeli citizen in response

### First Amended Third P arty C omplaint

8 to questioning by the Saudi authorities , unless he first obtained special

permission from the Saudi government to board the flight

.

24. On May 1, 2015, c omplainant telephoned the Saudia reservations

office. He explained the purpose of Tefillin and asked whether he would

be permitted to bring them on board the aircraft. The Saud i a

representative , after checking with h is supervisor, informed complainant

that he would not be permitted to take Tefillin on board the aircraft

.

25. Under Saudi Arabian law, the public display of non

- Islamic

religious articles is forbidden. As noted by the State Department, the

Saudi g overnment “ prohibits the public practice of religions other than

Islam. Non

- Muslims suspected of violating these restrictions have been

jailed. Even church services in private homes have been raided, and

participants have been jailed .” The State Department website further

states that “ Persons violating Saudi Arabian laws, even unknowingly,

may be expelled, arrested, imprisoned, subject to physical punishments,

or ev en executed .”

http://travel.state.gov/content/passports/english/country/saudi

- arabia.html

LEGAL FRAMEWORK

### First Amended Third P arty C omplaint

9 26. The Secretary’s paramount and overriding responsibility is to

ensure the safety and security of passengers in air commerce. 49 U.S.C. §

40101(a)(1).

27. Pursuant to 49 U.S.C. § 40127(a), a foreign air carrier “ may not

subject a person in air transportation to discrimination on the basis of

race, color, national origin, religion, sex, or ancestry .”

28. An air c arrier is prohibited by 49 U.S. C. § 41310(a) from

subjecting a person “ to unreasonable discrimination ” in foreign air

transportation. The provisions of 49 U.S. C. § 41310(a) prohibit airlines

from engaging in non

- economic forms of discrimination against

individuals. This provision was relied upon by the Secretary in ordering

the cessation of discriminatory conduct against Arab passengers in the

aftermath of 9/11, notwithstanding the airline’s objection that the statute

was aimed at rate discrimination. See Order Denying Motion of

American Airlines to Dismiss, Docket OST

- 2003

- 15046, at pp. 2- 3.

29. Pursuant to 49 U.S.C. § 41712(a) , the Secretary may bring action

against a foreign air carr ier for engaging in an " unfair or deceptive

practice or an unfair method of competition in air transportation ."

30. The anti

- boycott provisions of the Export Administration

Regulations (EAR) prohibit any “ United States person ” from refusing to

### First Amended Third P arty C omplaint

10 do business with a national of a friendly foreign country, “ when such

refusal is pursuant to

.... a requirement of the boycotting country, or a

request from or on behalf of the boycotting country .” 15 C.F.R. §

760.2(a)(1). The term “ United States person ” includes any U.S. sales

office or other permanent domestic establishment of a foreign concern.

15 C.F.R. § 760.1(b)(1)(iv). 15 C.F.R. § 760.1(b)(4)(iii). The boycott

regulations also define a “United States person” to include U.S.

government agencies . 15 C.F.R. § 760.1(b)(1)(i).

31. The se regulations prohibit the Secretary of Transportation from

abetting or permitting any violation of the anti

- boycott provisions

. 15

C.F.R. § 764.2(b) (d)

. See also 15 C.F.R. § 760.4(a)

. These regulations

further require the Secretary of T ransportation to report to the U.S.

Department of Commerce any request that it receives from an airline that

has the effect of furthering a boycott against a country friendly to the

United States. See 15 C.F.R. § 760.5(a) (1).

32. The First Amendment to the U. S. Constitution, as well as the Due

Process provisions of the Fifth Amendment, provides guarantees against

unreasonable discrimination by the federal government.

LEGAL VIOLATIONS ASSERTED AND RELIEF REQUESTED

COUNT I

– 49 U.S.C. § 40101(a)(1)

### First Amended Third P arty C omplaint

11 33. The allegati ons set forth in paragraphs 1

- 32 above are incorporated

by reference as though fully set forth herein.

34. The Secretary’s paramount statutory responsibility is to ensure the

safety and security of air passengers. 49 U.S.C. § 40101(a)(1).

35. Dual U.S. and Israeli citizens flying from New York, Los Angeles,

or Washington Dulles may be subject to fines, detention, or other

sanctions while waiting in the airport transit areas of the Riyadh or

Jeddah airports for their connecting flights , unless prior to boarding the

aircraft special permission was received from the Saudi government

.

36. Saudi a , and/or the Saudi Arabian authorities, must be required to

provide assurances that transit passengers from the United States will not

be subjected to any form of detention, harassment, coercion, or

intimidation due to their Israeli citizenship while waiting for their

connecting flights in the Riyadh or Jeddah airport transit areas , or while

on board any Saudi a flight from the United States. Saudia and/or the

Saudi government must also provide assurances that Jewish passengers

will be permitted to carry their Tefillin aboard the aircraft, and to safely

lay their Tefillin on their arms and forehead, whether on the airplane or in

Saudi airport t ransit area s

.

37. In the event Saudi a and/or the Saudi Arabian authorities are

### First Amended Third P arty C omplaint

12 unable to provide such assurances, the Secretary must nonetheless fulfill

his paramount statutory responsibility to ensure the safety and security of

all air passengers . 49 U.S.C. § 40101(a)(1). In such event, the Secretary

must revoke the permit granted to Saudi a to carry passengers from

airports in the United States. 49 U.S.C. § 41304(a).

COUNT II

– VIOLATION OF 49 U.S.C. § 41712(a)

38. The allegations set forth in paragraphs 1 -37 above are incorporated

by reference as though fully set forth herein.

39. Saudi a engages in unfair practices and unfair methods of

competition by offering tickets for sale in the United States without

informing the public of the prohibitions imposed upon dual U.S.

- Israeli

citizens , as well as upon Jewish passengers. Saudi a has a duty to

prominently display on its U.S. website and in its marketing materials

that certain restrictions apply to dual U .S. and Israeli citizens

. Saudia also

has an obligation to inform the public of prohibitions against bringing on

the aircraft any non

- Islamic religious articles. Saudi a further has an

obligation under 49 U.S.C. § 41712(a) to inform third party ticket agents

such as Expedia of these restrictions, who in turn are obligated to furnish

such informatio n to persons buying tickets through them.

40. The failure of Saudi a to provide such information could endanger

### First Amended Third P arty C omplaint

13 the personal security of dual U.S. and Israeli citizens or Jewish

passengers if they were to fly without notice of the applicable

restrictions . The failure of Saudi a to provide such information also

deprives all other prospective passengers of the right to decide whether

they wish to fly on Saudi a or to transit through Saudi Arabia in light of

the restrictions imposed upon dual U.S.

- Israeli citizens and Jewish

passengers

.

41. The above described actions constitute an " unfair practice or an

unfair method of competition in air transportation " in violation of 49

U.S.C. § 41712(a).

COUNT II I – VIOLATION OF 49 U.S.C. § 40127(a)

42. The allegati ons set forth in paragraphs 1

- 41 above are incorporated

by reference as though fully set forth herein.

43. The provisions of 49 U.S.C. § 40127(a) prohibit discrimination on

the basis of race, ancestry, religion, and national origin. Saudia’s

prohibition against taking Tefillin aboard the aircraft and the laying of

Tefillin on one’s arm and forehead violate this provision.

44. In Espinoza v. Farah Mfg. Co ., 414 U.S. 86, 94 S. Ct. 334, 38 L.

Ed. 2d 287 (1973), the Supreme Court held that citizenship

discrimination is not identical to national origin discrimination. However,

### First Amended Third P arty C omplaint

14 the Court warned that a “ citizenship requirement might be but one part of

a wider scheme of unlawful national

- origin discrimination ” and that a

citizenship test may be a “ pretext to disguise what is in fact national

origin discrimination. ” Id . at 92.

45. The Israel Boycott Law does not apply sole ly to Israel citizens, but

also to persons “ affiliated thereto by virtue of nationality.” The term

“ nationality ” is a broad term that may refer either to citizenship, or to

national origin and ethnicity. As such, the term “ affiliated thereto by

virtue of nationality” may also encompass distinctions based upon

national origin, ancestry, race, and religion.

46. The Declaration of the Establishment of the State of Israel declares

“ the establishment of a Jewish State in the Land of Israel” which is

further descri bed as the “ birthplace of the Jewish people.” 1 

### Israeli

citizenship is therefore closely interwoven with race, religion, national

origin, and ancestry. Israeli citizenship, like U.S. citizenship, may also be

acquired upon birth, thereby reinforcing the link between Israeli

citizenship and national origin. 2

1 

### An English translation of this document is available on the website of

the Israeli Ministry of Foreign Affairs, www.mfa.gov.il.

2 

### The circumstances in which Israeli citizenship may be acquired by birth

are described in the Israeli Foreign Ministry website at

### First Amended Third P arty C omplaint

15 47. The acts complained of herein constitute a violation of 49 U.S.C. §

40127(a).

COUNT IV

– VIOLATION OF 15 C.F.R. PART 760

48. The allegati ons set forth in paragraphs 1 -47 above are incorporated

by reference as though fully set forth herein.

49. Saudi a is required by the Israel Boycott Law to refrain from

offering transportation to citizens of the State of Israel. The U.S. sales

offices of Saudi a are “ Un ited States Persons .” 15 C.F.R. §

760.1(b)(1)(iv); 15 C.F.R. § 760.1(b)(4)(iii). These United States

Persons are obligated by Saudi law to comply with the Israel Boycott

Law. As such, these United States Persons are in violation of the anti

boycott provis ions of the Export Administration Regulations (EAR), 15

C.F.R. Part 760.

50. The U.S. Department of Transportation is also a United States

Person for purposes of these anti

- boycott provisions. As such, the

Secretary would be illegally facilitating the boycott of Israel if it were to

approve the discriminatory policy of Saudi Arabia. 15 C.F.R. §

764.2(b)(d). See also 15 C.F.R. § 760.4(a).

COUNT V – VIOLATION OF 49 U.S.C. § 41310(a)

http://www.mfa.gov.il/mfa/aboutisrael/state/pages/acquisition%20of%20i

sraeli%20nationality.aspx

### First Amended Third P arty C omplaint

16 51. The allegatio ns set forth in paragraphs 1

- 50 above are incorporated

by reference as though fully set forth herein.

52. The actions alleged herein constitute “ unreasonable

discrimination .” U.S. citizens do not require permission from the

Embassy of Saudi Arabia to transit through Saudi Arabia

. There i s no

reasonable basis to treat c omplainant differently than any other U.S.

citizen.

53. The actions complained of herein further constitute unreasonable

discrimination because compliance with the Israeli Boyco tt Law by

United States Persons is expressly forbidden by regulations issued by the

Secretary of Commerce.

54. The actions complained of herein also constitute unreasonable

discrimination because the public policy of the United States is that the

Arab Boycot t of Israel is harmful and should be terminated immediately.

See e.g. Section 7035 of the Consolidated Appropriations Act, FY 2014

(P.L. 113

- 76) (expressing the sense of Congress that the Arab League

boycott of Israel be immediately terminated).

55. The action s alleged herein further constitute unreasonable

discrimination because they subject Jewish passengers to different

treatment than Muslim passengers with respect to bringing religious

### First Amended Third P arty C omplaint

17 articles aboard the aircraft

.

COUNT VI – VIOLATION OF FIRST AND FIFTH AMENDMENT

RIGHTS

56. The allegati ons set forth in paragraphs 1 -55 above are incorporated

by reference as though fully set forth herein.

57. Dual U .S.

- Israeli citizens have the same right as other U.S.

citizens to use the services of Saudi a and to transit through Saudi Arabian

airports. These services were financed in part by the U.S. government

through Export

- Import Bank financing of Saudi a

. Jewish passengers also

have the same right as other passengers to take religious articles aboard

the aircraft and to perform the rituals required by their faith.

58. Any order issued by the Secretary of Transportation that

effectively authorizes discrimination on the basis of religion or dual U .S.

and Israeli citizenship would constitute a violation of the First

Amendment to the U.S. Constitution, as well as the Due Process

provisions of the Fifth Amendment, including the prohibition

incorporated therein against denying any person equal protection of the

laws.

WHEREFORE, Complainant requests that the Secretary immediately

order Saudia to provide fair warning of any restrictions imposed upon

dual U.S. and Israeli citizens

, or upon persons who are no t Muslim. This