BREAKING: Air Wisconsin Wins In Pilot’s TSA Security Threat and Defamation Case

“…to encourage air carriers and their employees,
often in fast-moving situations and with little time to fine-tune their diction,
to provide the TSA immediately with information about potential threats…”

The Supreme Court has unanimously overturned a judgment against Air Wisconsin Airlines today, a ruling that really has more to do with safety under the Aviation and Transportation Security Act (ATSA) than the defamation of the fired airline pilot plaintiff.

As a background, here are the case summaries and some links to my previous posts on the case:

1. Air Wisconsin Corp. v. Hoeper, No. 12-315 – A defamation case involving vague and contradicting facts concerning a “soon-to-be-fired” pilot, the reports surrounding his potential security risk, and the application of the immunity provision in the Aviation and Transportation Security Act (ATSA). Original post here.
2. Oral Argument Talking Points post here.

My take and prediction from the oral arguments was:

I’m guessing that after the Justices review the case facts, along with a peppering of statutory analysis and similar “risk reporting” hypotheticals by the Justices, the result will weigh heavily in favor of Air Wisconsin for a reverse and remand with instructions on applying the ATSA immunity standard. The public policy for promoting the reporting  of security threats via granting broad immunity protection, along with a general favoritism of speech protection (with certain exceptions, like actual malice, fighting words, etc.), should be main factors considered by the Court in interpreting Congress’s intent behind ATSA.

Turning now to the Opinion, I was pretty dead on!

The question before us is whether ATSA immunity may be denied under §44941(b) without a determination that a disclosure was materially false. We hold that it may not. Because the state courts made no such determination, and because any falsehood in the disclosure here would not have affected a reasonable security officer’s assessment of the supposed threat, we reverse the judgment of the Colorado Supreme Court.

In other words, the ATSA immunity provisions require a showing that the statement about an individual is materially false. The Court continued on about the perspective for determining such materiality was from that of the TSA security officer.

According to the jury, he made two statements to the TSA: first, that Hoeper “was an FFDO [Federal Flight Deck Officer] who may be armed” and that the airline was “concerned about his mental stability and the whereabouts of his firearm”; and second, that an “[u]nstable pilot in [the] FFDO program was terminated today.” App. to Pet.for Cert. 111a. (The latter statement appears in the record as the subject line of an internal TSA e-mail, summarizing the call from Doyle. App. 414.)

The TSA responded to the call by ordering that Hoeper’s plane return to the gate. Officers boarded the plane, re- moved Hoeper, searched him, and questioned him aboutthe location of his gun. When Hoeper stated that the gun was at his home in Denver, a Denver-based federal agent went there to retrieve it.

The court found that statements airline officials made about Hoeper about his mental state and his possibly being armed “were not material.” Likely more important, the type of reporting done by Air Wisconsin was the type of safety concerns that should be brought to the attention of the TSA, and as the ATSA immunity statute is meant to protect, according to the Court.

To the extent that Air Wisconsin’s statement could have been confusing, any such confusion is immaterial, as a reasonable TSA officer—having been told that Hoeper was an FFDO who was upset about losing his job—would have wanted to investigate whether he was armed. To demand more precise wording would vitiate the purpose of ATSA immunity: to encourage air carriers and their employees, often in fast-moving situations and with little time to fine-tune their diction, to provide the TSA immediately with information about potential threats. Second, Air Wisconsin’s statement that Hoeper “was terminated today” was not materially false. While Hoeper had not actually been fired at the time of the statement, everyone involved knew that his firing was imminent. No reasonable TSA officer would care whether an angry, potentially armed airline employee had just been fired or merely knew he was about to meet that fate. Finally, although the details of Hoeper’s behavior during the simulator session may be disputed, it would have been correct even under Hoeper’s version of the facts for Air Wisconsin to report that Hoeper “blew up” during the test. From a reasonable security officer’s perspective, there is no material difference between a statement that Hoeper had “blown up” in a professional setting and a statement that he was unstable. Air Wisconsin’s related statement that it was “concerned about [Hoeper’s] mental stability” is no more troubling. Many of the officials who attended the meeting at airline headquarters might not have framed their concerns in terms of “mental stability,” but it would be inconsistent with the ATSA’s text and purpose to expose Air Wisconsin to liability because the manager who placed the call to the TSA could have chosen a slightly better phrase to articulate the airline’s concern. A statement that would otherwise qualify for ATSA immunity cannot lose that immunity because of some minor imprecision, so long as “the gist” of the statement is accurate [citation omitted]. (My emphasis).

Lastly, Justices Scalia, Thomas and Kagan partially dissented in the case, stating that the issue of whether the complaints against a passenger were “material” should be a matter put to the jury, and not a matter of law for the court (read: trial court judge) to decide.

In short, a jury could find that Hoeper did nothing morethan engage in a brief, run-of-the-mill, and arguably justified display of anger that included raising his voiceand 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. …

In sum, it is simply implausible that, taking the facts of this case in the light most favorable to Hoeper, a reasonable jury would have to find that the report of mental instability would have no effect upon the course of action determined by the TSA.

The majority opinion responded (written by Justice Sotomayor):

The partial dissent further argues that Hoeper’s “display of anger” made him no more a threat than “millions of perfectly harmless air travelers.” Post, at 4. But Hoeper did not just lose his temper; he lost it in circumstances that he knew would lead to his firing, which heregarded as the culmination of a vendetta against him. And he was not just any passenger; he was an FFDO,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 abadly brewed cup of coffee. (My emphasis).

Here’s the link again to the Opinion if you’re interested. It is an interesting read.
Do you agree with the Supreme Court?

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