Thursday, May 1, 2014
Supreme Court Update - Court Set to Weigh-In On ATSA Immunity
By: Steven L. Boldt
In Air Wisconsin Airlines Corp. v. Hoeper, William
Hoeper was a pilot for Air Wisconsin and also a Federal Flight Deck
Officer authorized to carry a TSA-issued firearm. He had
previously failed three aircraft proficiency tests and was aware
that a fourth failure could result in his termination at the option
of Air Wisconsin. During the final test, Mr. Hoeper allegedly
exhibited irrational behavior and directed angry outbursts at his
test administrator, accusing him of undermining his ability to pass
the test. The test administrator reported the confrontation
to an Air Wisconsin manager, who subsequently called TSA a few
hours later following further deliberation with Air Wisconsin
management and reported that: (1) Mr. Hoeper was about to travel
and had been terminated from his job, (2) there was concern about
his mental stability, and (3) that he might be armed.
Following Air Wisconsin's disclosure, Mr. Hoeper was removed
from his flight by the TSA; however, he was ultimately released and
returned home on the next flight that evening. Based upon Air
Wisconsin's statements to the TSA, Mr. Hoeper filed suit against
Air Wisconsin in Colorado state court for defamation.
Air Wisconsin, in turn, sought protection for its statements
under the Immunity for Reporting Suspicious
Activity provision of the Aviation and Transportation
Security Act (ATSA), which provides qualified immunity to an
airline who makes a voluntary disclosure to government officials of
any suspicious activity relevant to a possible threat to aircraft,
passenger safety, or terrorism. Passed in the aftermath of
the 9/11 attacks, the only limitation of ATSA immunity is for: "(1)
any disclosure made with actual knowledge that the disclosure was
false, inaccurate or misleading; or (2) any disclosure made with
reckless disregard as to the truth or falsity of that disclosure."
49 U.S.C. § 44941(b).
Recognizing that airlines often have critical information which
could assist TSA to confront threats, the ATSA immunizes airline
employees for reports of any possible security threats, including
borderline cases, and comports with the TSA's "when in doubt,
report" policy. Nevertheless, the jury found that Air
Wisconsin's statements to the TSA were made with reckless disregard
as to their truth or falsity; thereby falling outside the purview
of ATSA immunity. As a result, the jury awarded Mr. Hoeper a
verdict in the amount of $1.4 million. This verdict was
upheld twice on appeal, most recently by the Colorado Supreme Court
in a 4-3 decision, finding that there was "clear and convincing
evidence" that Air Wisconsin acted with actual malice in its
communications to the TSA about Mr. Hoeper. The court
specifically found that Air Wisconsin "overstated" the facts to the
TSA and should have alternatively stated: (1) that Hoeper "knew he
would be terminated soon" instead of he was "terminated today"; (2)
Hoeper "was an FFDO pilot" instead of "he was an FFDO who may be
armed"; and (3) Hoeper "had acted irrationally at the training
three hours earlier and 'blew up' at the test administrators"
rather than "we were concerned about his mental stability."
According to the Colorado Supreme Court, the proposed language
above would have given Air Wisconsin immunity under the ATSA.
2012 CO 19 (2012), cert. granted, No. 12-315, 2013
U.S. LEXIS 4555 (U.S., June 17, 2013).
Now on appeal to the United States Supreme Court, Air Wisconsin
seeks to have the judgment reversed because: (1) ATSA immunity may
not be denied without a determination by the court that the Air
Wisconsin's disclosure was materially false; and (2) Air
Wisconsin's disclosure to the TSA was substantially true. Air
Wisconsin further argues that the Colorado Supreme Court's ruling
may have a "chilling effect" on an airline's willingness to
promptly report suspicious activities in fear of being exposed to
costly defamation judgments whenever the perceived threat turns out
to be a false alarm.
Mr. Hoeper argues that Air Wisconsin essentially forfeited the
issue on appeal (i.e., whether ATSA immunity may be denied without
a determination that the air carrier's disclosure was materially
false), because Air Wisconsin failed to ask the court to instruct
the jury that it would be entitled to immunity if its statements
were "reckless but materially true." In fact, Air Wisconsin
"did not request a materiality instruction at all." The
remaining arguments of Mr. Hoeper's brief focuses on the procedural
history in his favor and the "overwhelming" evidence that the
statements to the TSA were false and made with actual malice.
The perceived threat in the Hoeper case,
however, is certainly not the first of its kind. On December
7, 1987, Pacific Southwest Airlines Flight
1771 was hijacked by a former USAir employee, David Burke,
who had been recently terminated by USAir for petty theft.
Angered at his supervisor for not reinstating him, Burke boarded
his supervisor's flight home to San Francisco and used his USAir
credentials to bypass Los Angeles International Airport security
with a firearm. As the aircraft, a British Aerospace 146
(BAe-146), cruised at 29,000 feet, the cockpit voice recorder (CVR)
captured the sound of two gunshots being fired in the cabin, which
is when Burke shot and killed his supervisor. The cockpit
door was then opened and a flight attendant told the pilots, "We
have a problem." The captain asked, "What kind of problem?"
Another shot was fired, presumably killing the flight
attendant, and Burke coldly stated, "I'm the problem," and fired
two more shots killing the pilots. Soon thereafter, Burke
pushed the control column forward and sent the aircraft into a
steep dive, crashing it near Cayucos, California and killing all 43
people onboard.
It was exactly this tragedy that the Air Wisconsin personnel
discussed before deciding to report Mr. Hoeper to the TSA.
Airline management also understood their TSA-ordered Aircraft
Operator Standard Security Program stated that a report should be
made, even if there was doubt. As succinctly stated by the
dissent inHoeper, "The post-9/11 policy was known as 'when in
doubt, report.'" Information of a potential security threat
is likely to be imperfect, the amount of time available to prevent
an attack is short, and the potential consequences of not reporting
the information to the proper authorities can be catastrophic, as
illustrated in the PSA 1771 case. The ATSA immunity provision is
meant to protect airlines under these difficult situations, and
promote the safety of the travelling public. The Supreme
Court will have to consider the potential chilling effect of the
Colorado judgment in deciding the case.
A decision in Hoeper is expected in the
spring of 2014. To view the briefs filed with the U.S. Supreme
Court, click here.
To listen to the oral arguments, click here.
* * *
Adler Murphy & McQuillen LLP has a seasoned team of attorneys
experienced at resolving a variety of aerospace related legal
matters.
This article is intended for informational
purposes only. It is not intended to provide legal advice, and you
should not act on the information contained herein without first
consulting legal counsel and obtaining advice with respect to your
particular issue or problem.