Court: Airlines Enjoy Broad Immunity for Threat Reports

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Federal law gives airlines and their employees broad immunity from civil lawsuits when they alert transportation authorities to potential threats, the U.S. Supreme Court ruled on Monday as it reversed a $1.4 million defamation verdict against an airline that reported a pilot was "mentally unstable."

"Congress meant to give air carriers the 'breathing space' to report potential threats to security officials without fear of civil liability for a few inaptly chosen words," Justice Sonia Sotomayor wrote in Air Wisconsin Airlines Corp. v. Hoeper.

The issue before the court was whether immunity under the federal Aviation and Transportation Security Act (ATSA), a post-Sept. 11 statute, could be denied without a determination that a disclosure was materially false. The justices unanimously said no.

ATSA grants immunity to airlines and employees with two exceptions: if the report or statements are made with actual knowledge that they are false, misleading or inaccurate, or if they are made with reckless disregard as to their truth or falsity.

The Colorado Supreme Court, Sotomayor wrote, incorrectly assumed that even true statements do not qualify for immunity if they are made recklessly.

Congress patterned the two exceptions to ATSA immunity after the actual-malice standard in the landmark New York Times v. Sullivan decision, Sotomayor wrote, adding, "and we have long held that actual malice requires material falsity. Because we presume that Congress meant to incorporate the settled meaning of actual malice when it incorporated the language of that standard, we hold that a statement otherwise eligible for ATSA immunity may not be denied immunity unless the statement is materially false."

Sotomayor said the material-falsity standard also serves the purpose of ATSA immunity.

 "Congress wanted to ensure that air carriers and their employees would not hesitate to provide the [Transportation Security Administration] with the information it needed," she wrote. "It would defeat this purpose to deny immunity for substantially true reports, on the theory that the person making the report had not yet gathered enough information to be certain of its truth."

The case dates to 2004 when William Hoeper, a 20-year veteran pilot, six with Air Wisconsin, took a test for certification to fly a new aircraft. After failing three attempts, he was given a "last chance" to pass or have his job terminated. When he failed again, he angrily accused the testing supervisor of sabotaging the test, said he was going to consult with his union's legal counsel and left the building cursing. There was evidence in the trial record that the new aircraft team disliked Hoeper and had rigged the test.

The testing official informed his supervisor of Hoeper's angry outburst and that he had left the building. The supervisor subsequently spoke with Hoeper, reserved a flight for Hoeper’s return home to Denver and arranged a driver to take him to the airport.

Several hours later, after speaking with his own supervisors about Hoeper, the supervisor who arranged Hoeper's flight home contacted the TSA. He reported that the airline was concerned that Hoeper was "mental unstable"; that Hoeper had been terminated that day; and that he was a federal flight deck officer who might be armed. (Flight deck officers are qualified to carry guns in the cockpit).

The TSA stopped Hoeper's flight as it taxied, took him off the plane and searched his belongings for a gun. He was released as not a threat and took a later flight home. He was fired the next day. Hoeper subsequently sued the airline for defamation, among other claims. A jury ruled in his favor on the defamation claim and found the airline was not immune. An intermediate state appellate court and the Colorado Supreme Court affirmed the award.

Although the Supreme Court was unanimous on the test for immunity under the federal law, the justices divided, 6-3, on its application to Hoeper's situation.

Hoeper, the majority said, "did not just lose his temper; he lost it in circumstances that he knew would lead to his firing, which he regarded as the culmination of a vendetta against him. And he was not just any passenger; he was [a federal flight deck officer], which meant that he could plausibly have been carrying a firearm. In short, Hoeper was not some traveling businessman who yelled at a barista in a fit of pique over a badly brewed cup of coffee."

However, Justice Antonin Scalia, dissenting with justices Clarence Thomas and Elena Kagan, said the court "reaches out to decide a fact-bound question better left to the lower courts, and then proceeds to give the wrong answer."

A jury, Scalia wrote, could find that Hoeper "did nothing more than engage in a brief, run-of-the-mill, and arguably justified display of anger that included raising his voice and swearing, but that did not cause anyone, including the person on the receiving end of the outburst, to view him as either irrational or a potential source of violence."

Air Wisconsin's counsel, Jonathan Cohn, partner in the Washington office of Sidley Austin, called the court's decision "very thorough and analytical." He added, "I think the court made clear airlines get deference, and the difference between getting immunity and not is not hairsplitting distinctions."

Kevin Russell of Washington's Goldstein & Russell, argued the case for Hoeper.

Contact Marcia Coyle at

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