Executive Summary: The U.S. Supreme Court recently overturned a $1.2 million jury verdict on a former Air Wisconsin pilot's defamation claims, holding that the statements made by the airline to the Transportation Safety Authority (TSA) were entitled to immunity under the Aviation and Transportation Security Act (ATSA). In Air Wisconsin v. Hoeper, 2014 U.S. LEXIS 798 (January 27, 2014), the Court held that materially truthful statements made by airlines to the TSA regarding potential safety threats are entitled to immunity regardless of whether they were made with reckless disregard as to their truthfulness.
Background
The plaintiff, Hoeper, was a Denver-based pilot for Air Wisconsin who attempted to become certified on the British Aerospace 146 (BAe-146) so that he could continue to fly out of Denver after the airline stopped Denver flights of the aircraft for which he was qualified. Hoeper failed his proficiency test three times and admitted that his employment was at the discretion of the airline. Air Wisconsin agreed to give him one more opportunity to pass the test, which included completing simulator training in Virginia. During the simulator training, Hoeper failed to cope with a challenging situation created by the instructor, and the simulator showed the engines "flaming out" due to a loss of fuel. When the instructor began to tell Hoeper he should know better, Hoeper became angry, threw his headset onto the glare shield, and began yelling at the instructor, using profanity and accusing him of "railroading the situation." Hoeper told the instructor he wanted to call his union's legal department, and the instructor ended the simulator session so he could do so.
Comments to the TSA
The instructor subsequently reported the incident to the Wisconsin-based manager of the BAe-146 fleet. The manager booked Hoeper on a United Airlines flight to Denver. Several hours later, the manager discussed the situation with the airline's Vice President of Operations, its Managing Director of Flight Operations, and its Assistant Chief Pilot. The officials were aware that Hoeper was a Federal Flight Deck Officer (FFDO) and, as such, was permitted to carry a firearm while providing air transportation. Although the regulations did not permit him to carry a firearm to the training facility, the officials were aware that the Denver airport's security procedures made it possible for crewmembers to bypass screening, so that Hoeper could have carried his gun despite the rule. In light of Hoeper's anger, his impending termination, the fact that he might be armed, and a history of assaults by disgruntled airline employees, the officials determined that they should call the TSA to make them aware of the situation. The BAe-146 manager made the call, in which he stated that Hoeper "was an FFDO who may be armed," that the airline was "concerned about his mental stability and the whereabouts of his firearm," and that an "[u]nstable pilot in[the] FFDO program was terminated today."
In response to the call, TSA officials ordered Hoeper's airplane to return to the gate. TSA officers boarded the plane, removed Hoeper, searched him, and questioned him about the gun. The next day, Air Wisconsin terminated Hoeper's employment.
Defamation Claims
Hoeper subsequently sued Air Wisconsin for defamation, based on the statements made to the TSA. A state court jury returned a verdict of over $1.2 million in his favor. The case made its way to the Colorado Supreme Court, which rejected Air Wisconsin's arguments that these statements were entitled to immunity under the ATSA. The immunity provision in the ATSA provides:
[a]ny air carrier . . . or any employee of an air carrier . . . who makes a voluntary disclosure of any suspicious transaction relevant to a possible violation of law or regulation, relating to air piracy, a threat to aircraft or passenger safety, or terrorism, . . . to any employee or agent of the Department of Transportation, the Department of Justice, any Federal, State, or local law enforcement officer, or any airport or airline security officer shall not be civilly liable to any person under any law or regulation of the United States, any constitution, law, or regulation of any State or political subdivision of any State, for such disclosure.
The Colorado Supreme Court held that in determining immunity under the ATSA, it was not required to decide whether the statements were true or false, but instead concluded that "Air Wisconsin made the statements with reckless disregard as to their truth or falsity."
U.S. Supreme Court Finds Statements to TSA Entitled to Immunity under the ATSA
The airline sought U.S. Supreme Court review of this decision. The U.S. Supreme Court overruled the Colorado Supreme Court and held that immunity may not be denied under the ATSA without a determination that the disclosure was materially false. In reaching this conclusion, the Supreme Court noted that immunity under the ATSA is patterned after the actual malice standard the Court adopted for defamation claims involving public figures in New York Times Co. v. Sullivan, 376 U. S. 254 (1964). The actual malice standard requires a finding of material falsity.
Since the holdings requiring a finding of material falsity to establish actual malice were established when Congress enacted the ATSA, the Court presumed Congress meant to adopt the material falsity requirement when it incorporated the actual malice standard into the ATSA immunity exception. The Court held, "[t]he actual malice standard does not cover materially true statements made recklessly, so we presume that Congress did not mean to deny ATSA immunity to such statements."
The Court held that the material falsity standard serves the purpose of ATSA immunity. The ATSA shifted responsibility for assessing and investigating possible threats to airline security from the airlines to the TSA. The Court found that Congress included the immunity provision in the ATSA to ensure that air carriers and their employees would not hesitate to provide the TSA with the information it needed. According to the Court, 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 Court then determined that the statements in this case were not materially false. The Court noted that a materially false statement is generally one that "‘would have a different effect on the mind of the reader [or listener] from that which the . . . truth would have produced.'" In the ATSA context, this standard suffices as long as the hypothetical reader or listener is a security officer. In determining whether a statement produces a different effect on the mind of a security officer than the truth would have produced, a court must look at the impact of the statement on the TSA's behavior.
Although Hoeper did not argue that the manager's statement that he "was an FFDO who may be armed" was false, he claimed that Air Wisconsin should have qualified this statement by adding that it had no reason to think he was actually carrying his weapon, especially since he was not permitted to do so under the regulations. The Court rejected this argument, holding that any confusion caused by the failure to make such a qualification was immaterial, since a "reasonable TSA officer, having been told only that Hoeper was an FFDO and that he was upset about losing his job, would have wanted to investigate whether Hoeper was carrying his gun." Further, the Court held that to accept the demand for such 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. Baggage handlers, flight attendants, gate agents, and other airline employees who report suspicious behavior to the TSA should not face financial ruin if, in the heat of a potential threat, they fail to choose their words with exacting care."
Additionally, the Court was not troubled by Air Wisconsin's statement that it was concerned about Hoeper's mental stability. Although some of the managers testified that they might not have framed their concerns in terms of "mental stability," the Court held that the manager's statements accurately conveyed the "gist" of the situation and that "it is irrelevant whether trained lawyers or judges might with the luxury of time have chosen more precise words." The Court also rejected the partial dissent's argument that the manager's reference to Hoeper's "mental instability" was so egregious as to make his report to the TSA the basis of a $1.2 million defamation judgment. A finding that Air Wisconsin lost ATSA immunity because its manager failed to be aware of every connotation of the term mental stability "would eviscerate the immunity provision." According to the Court, "if such slips of the tongue could give rise to major financial liability, no airline would contact the TSA (or permit its employees to do so) without running by its lawyers the text of its proposed disclosure — exactly the kind of hesitation that Congress aimed to avoid."
The Court concluded that, by incorporating the actual malice standard into the ATSA's immunity provision, 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" and "[t]o hold Air Wisconsin liable for minor misstatements or loose wording would undermine that purpose and disregard the statutory text."