MEMORANDUM OPINION AND ORDER
Plaintiffs, Dr. Kamyar Kalantar, an Iranian-born physician who is a permanent resident of the United States, and his wife, Dr. Grace Lee, bring this action against Lufthansa German Airlines ("Lufthansa") and two of its employees, Ziba Vali-Coleman and Juergen Starks, challenging the airline's allegedly discriminatory practices. Plaintiffs claim that on March 25, 2000, Kalantar was not allowed to board a Lufthansa flight to Germany after he refused to allow his luggage to be searched.*fn1 Plaintiffs assert that defendants' insistence that Kalantar allow his luggage to be searched as a condition of his being allowed to board the flight to Germany, something not required of other passengers, was an unlawful discriminatory act based on Kalantar's race and/or national origin. Plaintiffs also allege that Lufthansa personnel made defamatory statements against Kalantar and, without justification, caused him to be arrested.
Presently before the court is defendants' supplemental motion for summary judgment. Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that defendants' supplemental motion must be denied.
Having attended a Renal Physician Association conference at the Mayflower Hotel in Washington, D.C., Kalantar arrived at Dulles Airport shortly after 4:00 p.m. on March 25, 2000, roughly an hour and a half before his anticipated flight to Frankfurt, Germany. Upon arriving at the Lufthansa ticket counter, Kalantar presented his ticket and luggage to a Lufthansa agent who took his luggage and secured a boarding pass. Another agent, defendant Ziba Vali-Coleman, however, refused to give the boarding pass to Kalantar stating that, because Kalantar had an Iranian passport, his luggage had to be searched before he would be allowed to board. In response to Kalantar's request for further explanation, Vali-Coleman told Kalantar that she was acting pursuant to a Federal Aviation Administration ("FAA") security directive. According to Kalantar, when he asked Vali-Coleman to produce the directive so that he could review it, she declined to do so and, within earshot of other passengers, told Kalantar that"he must know that the United States Government is against all Iranians" and that he is a security threat. Am. Compl. ¶ 7. Thereafter, when Kalantar refused to leave the Lufthansa ticket counter and persisted in his refusal to allow a hand-search of his luggage, Lufthansa personnel called the police. The police then arrived at the scene and eventually arrested Kalantar and took him away in handcuffs. This action followed.
On March 23, 2001, plaintiffs filed the instant complaint alleging several causes of action, including race and national origin discrimination, defamation, false imprisonment, and intentional infliction of emotional distress. After answering the complaint, defendants filed an ex parte motion for summary judgment under seal. In their summary-judgment motion, defendants argued that they are entitled to judgment as a matter of law because their conduct towards Kalantar was proper–indeed compelled–under an FAA security directive which, by law, they could not disclose.*fn2 Plaintiffs responded to defendants' ex parte motion by filing a motion to strike. In the alternative, plaintiffs proposed that their attorney, Afshin Pishevar, be permitted to review the motion subject to a court order that he not disclose any information regarding the security directive to anyone, including plaintiffs.
On January 3, 2002, the court held a hearing on plaintiffs' motion. At the hearing, counsel for defendants informed the court that he had informed the FAA in writing about this lawsuit and inquired whether Lufthansa would be permitted to disclose the contents of the security directive to Kalantar or his attorney. Counsel stated that Carla Martin, an FAA"department head," in a telephone conversation told him that, in similar circumstances, the FAA had consented to the disclosure of a security directive to counsel for a party in litigation. Consent to disclose the security directive to Kalantar or to his attorney would be withheld in this case, however. Defense counsel explained that Kalantar and his attorney are"involved in advocacy groups for Iranians fighting discrimination" and have a connection with a pro-Iranian website discussing supposed discrimination against Iranians in various forums including the airline industry and specifically by Lufthansa. Hr'g Tr. at 24-25. According to defense counsel, on this website,"[t]here is a list of attorneys whom people can contact if they feel they've been discriminated against because of their Iranian heritage and Mr. Pishevar is listed there. He is, also, listed as one of the board of directors or some sort of executive officer of the group." Id. at 25.*fn3
Following the hearing, the court issued an order on February 21, 2002, inter alia, requiring: (1) defense counsel to disclose defendants' summary judgment motion to counsel for plaintiffs by March 18, 2002; (2) plaintiffs' counsel not to reproduce defendants' summary-judgment motion or disclose its contents to anyone, including his clients, and to return the motion to defense counsel immediately after the court's ruling on defendants' motion for summary judgment; and (3) defense counsel to deliver a copy of the court's order to Jane Garvey, Administrator of the FAA, and David Leitch, the FAA's Chief Counsel by no later than March 4, 2002.
In response to the court's February 21, 2002, order and pursuant to 28 U.S.C. § 517 (2000),*fn4 the United States Department of Transportation, Transportation Security Administration ("TSA"), moved to stay the court's order and for leave to file a Statement of Interest.*fn5 This motion was granted and the United States filed its Statement of Interest on April 10, 2002.
In its statement, the United States explained that the security directive at issue constitutes sensitive security information ("SSI") the protection of which"is critical to the United States' efforts to protect the general public from terrorists attacks like those committed on September 11, 2001," and that disclosure"at this time to anyone without an operational need to know the information could jeopardize the safety of the public." United States' Statement of Interest at 1. Recognizing the difficulties presented to the court by the filing of a motion for summary judgment ex parte and under seal in order to protect SSI, the United States proposed to make available to the court, ex parte, upon the court's request, additional information about the security directive at issue in this case. The United States also advanced the proposition that the court should decide whether plaintiffs' need for the security directive is moot in light of the possible preemptive effect on this litigation of the Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 12, 1929, 49 Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11, reprinted in note following 49 U.S.C. § 40105 [hereinafter the Warsaw Convention], a matter not previously brought to the court's attention. Agreeing with the United States that the Warsaw Convention, if applicable to this case, would preempt this suit and render the issue regarding disclosure of the security directive moot, the court ordered the parties to brief the issue. This is the matter that is presently before the court.
A. Summary Judgment Standard
Under Fed. R. Civ. P. 56, summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Material facts are those"that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment, the"evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But the non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The non-moving party is"required to provide evidence that would ...