Business forum: Court victory is a boost for aviation safety

Traveling business people and the general flying public should now have more assurance that their flights are safe from security risks. In January, the U.S. Supreme Court ruled that airlines have broad immunity under the Aviation and Transportation Security Act (ATSA), a post-9/11 security law created to assess and manage threats against air travel.

The high court overturned a $1.2 million defamation judgment awarded to a pilot who was reported by his employer, Air Wisconsin Airlines, as a possible security threat.

"Congress wanted to ensure that air carriers and their employees would not hesitate to provide the Transportation Security Administration (TSA) with information it needed," wrote Justice Sonia Sotomayor in the January decision. The high court confirmed that airlines may only be held liable for recklessly false reports.

The case arose from a call made by Air Wisconsin management to the TSA on Dec. 8, 2004, following an angry outburst by one of its pilots. William Hoeper was undergoing flight simulator training when he suddenly stopped the training, pushed his seat back, cursed and threw his headset at the instrument panel. Because he was on a "last chance agreement" (he had previously failed three attempts to qualify as a captain in a particular type of aircraft), he knew that his employment would likely be terminated. After storming out of the simulator, he continued in an agitated state, threatening the flight instructor and creating a scene in the training facility.

When his behavior was reported to the executive team at Air Wisconsin, it was determined that Hoeper was also a Federal Flight Deck Officer (FFDO). As an FFDO, he was authorized to carry a government-issued firearm onto an aircraft. It was not known whether he had the firearm with him during the simulator training session.

Hoeper was scheduled to depart from Washington Dulles Airport following the failed simulator session to return to his domicile in Denver. Because it was unknown if he had his weapon with him, Air Wisconsin contacted TSA and advised it of what had transpired concerning Hoeper's behavior. Before the departure of Hoeper's return flight to Denver, TSA employees boarded the aircraft, escorted him on to the jet bridge and searched him for his firearm. No weapon was found, and Hoeper was permitted to board a later flight to return to his home the same day.

Hoeper subsequently filed a claim for defamation, false imprisonment and intentional infliction of emotional distress against Air Wisconsin Airlines. After a three-week jury trial in Denver, the jury found for Air Wisconsin on the false imprisonment claim; could not reach a decision on the intentional infliction of emotional distress claim, and found for Hoeper on the defamation claim.

Before, during and after the trial, Air Wisconsin moved for dismissal of the case, arguing that it was immune from Hoeper's lawsuit under ATSA. The act provides airlines and their employees with immunity for reporting suspicious actions regarding air safety to the proper authorities, so long as the report is not knowingly false or made with reckless disregard as to its truth or falsity.

The trial court, Colorado Court of Appeals and Colorado Supreme Court all rejected Air Wisconsin's immunity argument. Air Wisconsin petitioned to have the case heard by the U.S. Supreme Court.

The U.S. Solicitor General joined Air Wisconsin's petition in urging the Supreme Court to review the case. U.S. Solicitor General Donald Verrilli argued in an amicus brief that "[t]he Colorado court's analysis may chill other air carriers from timely providing the government with critical information about threats to aviation security."

The high court heard oral arguments in December and in late January the court unanimously concluded that the purpose of ATSA immunity was "to encourage air carriers and their employees, often in fast-moving situations and with little time to fine-tune their dictation, 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."

The court's decision is not only a victory for Air Wisconsin Airlines, but confirms the intent of the law for all airlines and their employees: "When in doubt, report."

About the author: Attorney Donald Chance Mark Jr. is a founding member of Eden Prairie-based law firm Fafinski Mark & Johnson. He was lead counsel in Air Wisconsin Airlines Corp. vs. Hoeper since 2007.