Airline Immunity on Threat Reports Tested at High Court

The U.S. Supreme Court debated the reach of airlines’ legal immunity when they report potential security threats, as the justices heard the case of a pilot upset about losing his job.

The justices today reviewed a $1.4 million award won by the pilot, William L. Hoeper, who sued Air Wisconsin Airlines Corp. for telling federal officials as he was preparing to board a flight as a passenger that he was “unstable” and possibly armed. Closely held Air Wisconsin flies for US Airways Group Inc.

Several justices suggested they were loath to let juries second-guess the split-second decisions made by ticket agents, baggage handlers and flight attendants. That prospect “doesn’t give me a lot of comfort,” Justice Antonin Scalia said.

Airlines say a Colorado Supreme Court ruling that upheld the award leaves them legally vulnerable when they follow instructions from the Transportation Security Administration, which tells carriers to err on the side of reporting security issues. President Barack Obama’s administration is backing the industry in the case.

The case tests the 2001 Aviation and Transportation Security Act, a law enacted two months after the Sept. 11 terrorist attacks. The measure requires airlines to report security threats to the TSA. It also immunizes carriers from lawsuits, except for reports made with “actual knowledge” that they are false or “reckless disregard” for the truth.

False Statement

The high court case turns on whether a false statement is important enough to warrant stripping airlines of that immunity.

Hoeper says Air Wisconsin officials knew they were providing false information about him when they called TSA in 2004. The incident occurred after Hoeper, a 20-year commercial pilot, failed on his fourth and final try to pass a certification test. The airline was requiring Hoeper to prove his proficiency because it was discontinuing the type of airplane he had been piloting.

During the fourth test, Hoeper became angry with the test administrators, allegedly screaming at them and accusing them of deliberately undermining his chances.

He left the facility, and an Air Wisconsin manager, Patrick Doyle, booked the pilot on a flight to his Denver home. Before the flight left, Doyle called TSA to report Hoeper as a potential security threat.

Firearm’s Whereabouts

Among other things, Doyle said he was concerned about Hoeper’s mental stability and about the whereabouts of the firearm he had been issued in his capacity as a federal flight deck officer.

Hoeper was removed from the plane, arrested and later released. A Colorado state-court jury awarded Hoeper damages after concluding the airline had defamed him.

Justice Sonia Sotomayor today suggested Doyle had mischaracterized Hoeper’s mental state.

“What’s so difficult about simply saying he’s angry?” she asked. “Why choose the word ‘mentally unstable’? Isn’t it with an intent to connote something more than the facts?”

Justice Stephen Breyer suggested he wasn’t so sure.

“If I get very angry at something, one of my children will say, ‘God, he’s mentally unstable,’” Breyer. “People use that word in different contexts.”

Breyer said he worried that people would “start watching their words” when they report security threats.

Falling Wings

Justice Samuel Alito suggested that Hoeper, as a pilot, could be held to a different standard than other passengers.

“My impression of pilots is that they are supposed to remain perfectly calm even when terrible things happen,” Alito said. “You know, all engines are on fire and one of the wings has fallen off, but, you know, you don’t start ranting and screaming. And so someone described him as acting in a manner that was more unprofessional than they had ever seen.”

Alito and Chief Justice John Roberts both questioned whether courts and juries were equipped to determine the effect that a false statement might have on TSA officials.

Hoeper’s lawyer, Kevin Russell, said Air Wisconsin should have told TSA that “we don’t have any reason to believe that he has a gun with him, but we can’t tell for sure.”

Air Wisconsin’s lawyer, Jonathan Cohn, argued that airlines need leeway to avoid being “between a rock and a hard place” when dealing with security concerns.

A Justice Department lawyer, Eric Feigin, told the justices that the 2001 law “gives airlines very wide latitude in how they describe suspicious activities.”

Dueling Footnotes

In upholding the award, the Colorado Supreme Court said Air Wisconsin wasn’t entitled to immunity because Doyle’s statements were made with reckless disregard as to their truth or falsity.

The justices spent much of today’s hour-long session trying to determine exactly what the Colorado court had held. Breyer at one point said a footnote to the Colorado court’s decision determined that Doyle’s statements were false.

Breyer changed his stance after Alito pointed to another footnote, which said the state court made its immunity decision without giving the jury’s findings any weight.

“Once I put those two footnotes together, I have no idea what the Colorado Supreme Court says,” Breyer said.

The case is Air Wisconsin v. Hoeper, 12-315.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Patrick Oster at poster@bloomberg.net

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