“Did you hear about the pilot who flew his test flight through a rainbow?
It was ok, he passed with flying colors!”

Two cases before the U.S. Supreme Court this month for oral arguments have a topic tag of “travel” attached to them.

Last week we heard the oral argument for Northwest v. Ginsberg.
Today, December 9, is the oral argument for Air Wisconsin v. Hoeper.

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

  1. Northwest Airlines, Inc. v. Ginsberg, No. 12-462 – A breach of contract case involving a frequent flyer member who was unilaterally removed from Northwest’s program at its sole discretion and the potential application of the Airline Deregulation Act (ADA) to preempt such claims.
    [Prior travelblawg post here.]
  2. 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 potentialsecurity risk, and the application of the immunity provision in the Aviation and Transportation Security Act (ATSA).
    [Prior travelblawg post here.]

For today, here are my talking points for the Hoeper case, being solely my opinion:

Air Wisconsin Corp. v. Hoeper

  • A federal statute (the Aviation and Transportation Security Act (ATSA)) encourages airlines to report suspicious behavior and, in doing so, gives the airlines immunity from civil liability for those reports… unless they were made with actual malice.
  • Actual malice is gauged by the speaker’s knowledge that he is making a false statement or the reckless disregard of falsity.
  • Here, pilot Hoeper was having difficulty passing his flight certification, including his “last chance exam” which he flew to Virginia to take. However, he walked out of the exam after becoming upset and accusing the tester of siding with Air Wisconsin by manipulating his exam.
  • After failing his “last resort” and likely facing being fired by the regional carrier, Hoeper was expected to return to the airport and board a flight home, likely in a continued aggitated state. To add to the concern of Air Wisconsin, they knew him was a federal flight deck officer (FFDO), which allows pilots to 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).
  • Do to the circumstances, Air Wisconsin decided to contact TSA about the situation. The report to TSA stated that Hoeper “was a [FFDO] who may be armed. He was traveling . . . later that day and [Air Wisconsin] was concerned about his mental stability and the whereabouts of his firearm”; it also indicated that Hoeper was “[u]nstable” and had been “terminated today” (even though he was yet to actually be fired yet).
  • With Hoeper already on board, TSA forced the airplane from the runway back to the gate, boarded, removed him, and unpacked his luggage on the jet bridge in a search for a possible firearm.
  • ISSUES: Plaintiff Hoeper claims defamation, intentional infliction of emotional distress, and false arrest. Air Wisconsin asserts immunity protection under the ATSA.
  • HISTORY: A Colorado jury awarded him a total of $1.4 million in compensatory and punitive damages on the defamation claim. At trial, Air Wisconsin unsuccessfully argued immunity under the ATSA for reporting the suspicious circumstances to TSA. The court turned to the jury to answer the question if the report was “made with actual knowledge that the disclosure was false, inaccurate, or misleading” or with “reckless disregard as to the truth or falsity of that disclosure.” The jury said it was, denying immunity. The Supreme Court of Colorado disagreed that it was a proper jury question (instead, a question of law for the court), but found the error harmless because Air Wisconsin was not entitled to immunity for overstating the situation with reckless disregard for the truth.

    Will the immunity protection under the Aviation and Transportation Security Act (ATSA) protect Air Wisconsin?

    Will the immunity protection under the Aviation and Transportation Security Act (ATSA) protect Air Wisconsin?

  • PRO Air Wisconsin:
    • Air Wisconsin has a strong right-left combo punch by arguing (1) for a liberal application of ATSA immunity to encourage security threat reporting and (2) showing that without falsity in its report about Hoeper, there cannot be actual malice at issue.
    • As the reporter making the statements to the TSA did so with a reasonable belief of truth gleamed from the events of the day and prior, he should be afforded the immunity protection for which the federal statute has the intent of providing.
    • The report was a reasonable summary of its concerns and the level of reaction taken by the TSA is only a result of its interpretation of the report.
    • A ruling that narrows the liability protection of reporters with insider and unique knowledge that may impact the safety and welfare of the public would create a chilling effect that poses greater risks and goes against the intent of the statute.
  • PRO Hoeper:
    • True or not, the test for actual malice still includes statements made recklessly.
    • Regardless, Air Wisconsin’s statements were materially false because the airlines employees never considered him a real threat, and the report to TSA gave an improper impression of his mental stability and risk posed.
  • MY TAKE:
    • 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.
    • But Hoeper may do his best to focus the attention of the Justices on the statutory interpretation argument of the ATSA that is also in place that allows for civil liability if  reports are knowingly “inaccurate or misleading” statements.
    • Lastly, even if the intentional infliction of emotional distress and false arrest claims fail outright under ATSA immunity, it will be interesting to see if the Court gives attention to the defamation damages from the fallout of the highly public report for any further career hopes by Hoeper in the airline industry.


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