The U.S. Supreme Court recently granted Air Wisconsin’s petition for certiorari in the case of Air Wisconsin Airlines Corp. v. Hoeper – a case with national implications and the potential to affect anybody who flies or will fly aboard commercial aircraft. The case arose from a call made by Air Wisconsin to the Transportation Security Agency (TSA) on December 8, 2004. Air Wisconsin contacted the TSA because William Hoeper, an Air Wisconsin employee and Federal Flight Deck Officer (FFDO), had failed his aircraft training, had angrily blown up at his instructor and other Air Wisconsin employees, and was likely to be fired because he was on a last chance agreement. As an FFDO, Hoeper was authorized to carry a government-issued firearm onto an aircraft; Air Wisconsin contacted the TSA to report Hoeper’s behavior and to advise that he was scheduled to depart Dulles Airport on a flight that day. The TSA removed Hoeper from his flight, searched his bags for his FFDO-issued firearm, and allowed him to return home on another flight that same day.
Hoeper filed a claim for defamation, false imprisonment and intentional infliction of emotional distress against Air Wisconsin and several Air Wisconsin employees. After a three-week jury trial in Denver, Colorado, 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 the plaintiff on the defamation claim. During the trial and appeals process that followed, Air Wisconsin argued that it was immune from Hoeper’s lawsuit under the Aviation Transportation Security Act, 49 U.S.C. § 44941 (ATSA). ATSA 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.
The U.S. Solicitor General joined Air Wisconsin in urging the Supreme Court to take the case – “The Colorado court’s analysis may chill other air carriers from timely providing the government with critical information about threats to aviation security,” U.S. Solicitor General Donald Verrilli argued in an amicus brief.
On June 17, 2013, the U.S. Supreme Court granted certiorari on the ATSA immunity issue (barely 1% of the cases requesting review by the U.S. Supreme Court are granted). The specific issue before the Court is: “Whether ATSA immunity may be denied without a determination that the air carrier’s disclosure was materially false.” Oral argument before the Supreme Court is expected this December.
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