Applying Virginia law, the Colorado Supreme Court upheld a $1.4 million jury verdict against Air Wisconsin back in March of 2012, finding it was responsible for slander of a former pilot and not entitled to immunity. On June 17, 2013, the United States Supreme Court granted certiorari to consider the question of whether a court can deny the immunity provided by the Aviation and Transportation Security Act (ATSA) without a prior determination that the air carrier’s statements to the Transportation Security Administration (TSA) were materially false.
After the September 11th terrorist attacks, Congress passed the ATSA in order to encourage the reporting of security concerns. The ATSA requires airlines and their employees to report potential security threats to the TSA. Reporting parties are given broad immunity and may only be liable for reports made with actual knowledge that the report was false, inaccurate, or misleading, or with reckless disregard as to the truth or falsity of the report. Because failure to report can result in civil penalties, shorthand for the policy has become known as “when in doubt, report.”
William Hoeper was a pilot for Air Wisconsin Airlines. Hoeper apparently had failed three proficiency exams and abandoned his fourth attempt. Approximately ninety minutes into the test, Air Wisconsin contends that Hoeper ran the simulator out of fuel, flamed out the engines, and nearly crashed. According to Air Wisconsin, Hoeper knew he would be terminated and was acting irrationally, yelling and cursing at his instructors. Hoeper’s version of the story is that Air Wisconsin was conducting the simulator test unfairly, and a personal dispute was escalated into a matter of national security.
A manager heard about the incident from other employees and was aware that Hoeper had been issued a firearm under the Federal Flight Deck Officer program but was unsure whether he was carrying it. Based on these facts and knowledge of other incidents in which terminated employees boarded planes intending to crash them, the manager reported Hoeper to the TSA and booked him on a flight from Dulles back home to Colorado. Hoeper contends that the manager responded to his threat to call his union by making a false report.
Hoeper was not armed, a fact which TSA agents discovered after removing Hoeper from the flight to Colorado and searching and questioning him. TSA cleared Hoeper for travel, but Air Wisconsin fired him the next day. Hoeper sued his employer in Colorado for defamation based on the manager’s statements to TSA. Air Wisconsin argued it was immune from suit under the ATSA. A jury awarded Hoeper $1.4 million. The Colorado Court of Appeals affirmed, and the Colorado Supreme Court reviewed the case.
The Colorado Supreme Court noted that the issue of ATSA immunity was a question of law for the court and should not have been submitted to the jury. However, the court found this to be harmless error and affirmed the decision, holding that Air Wisconsin was not entitled to immunity under the ATSA. The court deferred to the jury’s finding that the manager did not actually believe Hoeper to pose an actual threat to safety.
Air Wisconsin contends that the manager did exactly what Congress intended when he reported Hoeper, an employee about to board an airplane and whose mental state concerned him and that the state court’s decision will chill future reports of potential security threats and thwart the ATSA goal of improving airport transportation security. On review, The United States Supreme Court will determine whether a court can deny ASTA immunity without first deciding whether the airline’s report was true. Resolution of this question could have long term repercussions for airport security procedures.