cockpit training flight

TOPMS Cockpit Scene via NASA

In 2004, Pilot William L. Hoeper never could have imagined that his fourth try to pass his proficiency check for his employer at the time, Air Wisconsin (a United Express regional servicer), would lead to the steps of the highest court in the United States for the case of Air Wisconsin Airlines Corp. v. Hoeper, an appeal from the Colorado Supreme Court (opinion here). The SCOTUS will hear the case during its 2013-14 term.

The Test

According to a lower court’s opinion, after failing three prior qualification tests, Hoeper traveled from Denver to Virginia for a fourth (and final) test, one he knew that he would likely lose his job over should he fail. However, Hoeper’s fourth test ended before its completion when he accused the tester of “deliberately sabotaging his testing” and used profanity. The tester relayed such actions back to Hoeper’s employer, noting that while he became angry (“[he] had blown up and was very angry”), no sense of immediate or future danger by him was expressed.

It is important to note that the Transportation Security Administration (TSA) had issued Hoeper a firearm as a federal flight deck officer (FFDO), which is allowed under federal law.  Pilots may act as federal law enforcement officers “to defend the flight decks of aircraft . . . against acts of criminal violence or air piracy.” 49 U.S.C. § 44921(a).

The Call

Knowing that Hoeper may have a firearm with him (note: carrying the firearm as a passenger, however, is not authorized by the federal law) and be returning to Denver on a flight while in a suspected agitated state of mind, Wisconsin Air’s supervisor notified TSA. While there is dispute over what exactly was said to the TSA regarding Hoeper, the jury determined TSA was told: (1) [Hoeper] was an FFDO who may be armed. He was traveling from IAD-DEN later that day and we were concerned about his mental stability and the whereabouts of his firearm; and (2) Unstable pilot in FFDO program was terminated today. In response, TSA officials detailed Hoeper and searched him.

At trial, Air Wisconsin’s employee acknowledged that he lacked the ability to assess Hoeper’s mental stability, as he was not present for the fourth test, and denied having made such a statement to TSA “because I did not want to cause Mr. Hoeper undue harm.” Nevertheless, as a result of his call, the aircraft carrying Hoeper was returned to the gate and armed officers removed, detained, and questioned him, until he was finally released and he returned to Denver on another flight. His employment with Air Wisconsin was officially terminated the following day.

Issue Before the SCOTUS

The issue before the U.S. Supreme Court will be whether the airline can shield itself from the $1.24 million defamation judgment ($849,625 in presumed damages, $350,000 in punitive damages, and $222,123.09 in costs) awarded against it against by use of the Aviation and Transportation Security Act (ATSA), 49 U.S.C. section 44941, a federal law that grants statutory immunity from lawsuits (not just damages, but from the lawsuits themselves) that arise against an air carrier who voluntarily discloses any suspicious transaction relevant to certain aircraft security statutes.

Air Wisconsin, with likely strong support from other carriers operating in the United States, contents that the lawsuit should have been dismissed at the beginning as reporting a “possible violation of law or regulation, relating to air piracy, a threat to aircraft or passenger safety, or terrorism” should grant the reporter full immunity, and doing otherwise would greatly discourage others from reporting potential security threats to TSA and law enforcement.

Exception: Actual Malice?

Regardless of the protection that the ATSA may provide to Air Wisconsin, and all carriers, should a “possible threat” be reported that are known to be false or statements made with reckless disregard of their truth or falsity, such a liability shield may be inapplicable, as well as opening the door to further compensatory and punitive damages. The lower courts both agreed that a review of the evidence (de novo) supported a finding that the Air Wisconsin employee acted with actual malice in making the report about Hoeper, including that he believed Hoeper to be mentally unstable (without personally observing him and admitting in trial that he did not know); that Hoeper had been terminated earlier that day (false, he was fired the next day); and that Hoeper may have been armed (which TSA would have already had to know if he logged in as a FFDO or he would have had to attempt to sneak a gun on like any other passenger).

While the court noted that such knowledge Hoeper and his (past?) attitude at and after the test may have warranted a report to TSA, the disregard of truth in the statements above, and the degree they were overstated, were found to be reasonable to lead a jury to find they were made with actual malice.

Quick Decisions Demand Subsequent Immunity Protections

The Colorado Supreme Court’s opinion includes a dissent by three Justices to the point that Air Wisconsin is an airline, not a security firm or law enforcement agency, i.e. Air Wisconsin reported possible threats, and it was “within the purview of the TSA’s investigative authority” to further examine and evaluate Hoeper. The court when on to say, “Air Wisconsin reported truthfully that it had concerns about Hoeper given his angry outburst, impending termination, and possible possession of a firearm. Under these circumstances, ATSA immunity plainly attaches.”

A court and jury have the luxury and perspective of hindsight and calm deliberation and analysis of facts. A police officer, an airline employee, a TSA investigator, must make quick decisions under pressure and on the scene. This is one of the hallmarks as to why immunity should be afforded under such situations.

What will the SCOTUS determine?
What say you?