In Air Wisconsin Airlines Corp. v. Hoeper (Jan. 27, 2014), the U.S. Supreme Court concluded that airlines are entitled to civil immunity for reporting suspicious behavior to the TSA, provided their reports are not “materially false.”
In this case, Hoeper, a pilot for Air Wisconsin, became combative with the airline after failing a required certification test and accused his instructor of stacking the test against him. Concerned about Hoeper’s behavior and the fact that, as a Federal Flight Deck Officer (FFDO), Hoeper had been issued a firearm which he could carry without detection on his flight home, Air Wisconsin called the TSA to notify them of the situation. Specifically, Air Wisconsin reported that "an unstable pilot in the FFDO program was terminated today,” that he “may be armed,” and that Air Wisconsin was “concerned about his mental stability and the whereabouts of his firearm.”
Hoeper sued Air Wisconsin for defamation, claiming that its statements to TSA were false because: (i) he had not actually been terminated when those statements were made (even though everyone knew that his failed certification triggered immediate termination), (ii) Air Wisconsin had no reason to believe that he was actually armed on a flight (even though he could have bypassed security with his FFDO firearm), and (iii) his extreme behavior during the failed certification test did not warrant Air Wisconsin’s conclusion that he may be mentally unstable.
Air Wisconsin argued that its statements were protected by the Aviation and Transportation Security Act (ATSA), 49 U.S.C. §44941, which provides airlines with immunity from civil liability for reports of suspicious behavior. However the trial court, and later the Colorado Supreme Court, found that Air Wisconsin’s statements did not qualify for ATSA immunity because they were made with actual knowledge that the disclosure was false, inaccurate, or misleading, or were made with reckless disregard as to the truth or falsity of th[e] disclosure. Deprived of ATSA immunity for its statements, the jury held Air Wisconsin liable for defamation and awarded Hoeper damages in excess of $1.2 million.
On appeal, the U.S. Supreme Court reversed the Colorado Supreme Court and held that Air Wisconsin was entitled to immunity as a matter of law because “the gist” of its statements were accurate. The Court held that ATSA immunity will apply unless the information reported is “materially” false – i.e., false in a way that would affect a reasonable TSA officer’s assessment of the possible threat. The Supreme Court found that, although Air Wisconsin’s statements may have been imprecise or technically inaccurate in some respects, the statements were not materially false or misleading to the TSA. The Court recognized that the fundamental purpose of ATSA immunity is to incentivize airlines to report suspicious behavior on a real-time basis and that holding airlines liable for the use of imprecise (although not materially misleading) language in their reports would defeat the purpose of immunity.
Airlines will be entitled to ATSA immunity for reports of suspicious behavior so long as “the gist” of their reports is accurate and not materially misleading to the TSA. However, airlines should instruct employees to report suspicious behavior to the TSA by stating the objective facts giving rise to their suspicion and omit unnecessary subjective opinions or conclusions. In the famous words of Dragnet’s Sergeant Joe Friday, “just the facts, ma’am.”