By Mark Sherman
Associated Press
WASHINGTON (AP) — The Supreme Court questioned Monday whether a Wisconsin airline can be held liable for reporting one of its pilots as mentally unstable and potentially armed. Federal authorities pulled the pilot off a flight on which he was a passenger, but found no cause for concern.
The justices heard Air Wisconsin’s appeal of a $1.4 million defamation judgment in the case of veteran pilot William Hoeper. The dispute centers on the immunity Congress promised airlines in a post-9/11 law aimed at encouraging them to report possible security threats. The Obama administration has taken the airline’s side because it worries that upholding the verdict against Air Wisconsin would discourage other airlines from reporting potential security threats to the Transportation Security Administration.
Three courts in Colorado, where Hoeper lives, found that the law did not shield Air Wisconsin from Hoeper’s lawsuit after a jury determined that statements made by an airline official in a report to TSA were defamatory.
Several justices indicated they shared the administration’s concern, even as they expressed some sympathy for Hoeper over his treatment.
“So why isn’t the best thing to say is, look, there is leeway here, considerable leeway on the part of the airline or anyone else who’s reporting...things to TSA. All it means is they are going to search him more thoroughly,” Justice Stephen Breyer said.
In 2004, Hoeper’s job was in jeopardy after he failed for a fourth time to win airline approval to fly a new aircraft and had an angry exchange with another employee at a Virginia training facility.
Later that day, Hoeper was a passenger on a United Airlines flight to Denver that was ordered to return to its gate after Air Wisconsin called TSA with its report of Hoeper as a potential threat.
He was removed from the plane by armed police officers and asked about his gun — properly locked up at home — while his luggage was emptied on the jet bridge.
TSA eventually determined Hoeper was not a threat, but he said he was so embarrassed by the incident that he took a later flight rather than re-board the delayed plane that was still sitting at the gate.
Hoeper was certified in February 2004 as a federal flight deck officer, authorized to carry a gun while on the job to protect passengers and crew. Yet he claimed that he soon fell out of favor with supervisors who were intent on getting rid of him.
In December 2004, when Hoeper ended his fourth and final try to become certified to fly a different airplane, he threw his headset and cursed at his examiner, complaining that he was being set up to fail.
The examiner testified that he never considered Hoeper a threat and the airline booked Hoeper on a flight home that day, showing no apparent concern for his mental state.
Yet later in the day, the supervisor who called TSA said the airline was concerned about Hoeper’s mental stability and unsure about whether he was armed, even though training rules prohibited carrying a gun.
Justice Samuel Alito asked Air Wisconsin lawyer Jonathan Cohn whether, based on Hoeper’s actions, “you could say, we believe this man is mentally ill?”
Cohn said the court should not parse the choice of words because TSA receives reports from aviation workers with varying levels of sophistication and educational backgrounds who “might not all speak the way we do.”
Later, to Kevin Russell, Hoeper’s lawyer, Alito suggested that Hoeper’s behavior was sufficiently startling to warrant a call.
“I mean, my impression of pilots is that they are supposed to remain perfectly calm even when terrible things happen. 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,” Alito said.
Russell replied that while his actions could be taken into account, “you also have to recognize that, hopefully...most people don’t get treated as unfairly as Mr. Hoeper was.”
Even if the justices say airlines have broad immunity under the law, they could throw out the decision by Colorado’s highest court and still give Hoeper another chance a stricter standard imposed by the Supreme Court.
A decision should come by late spring.
The case is Air Wisconsin v. Hoeper, 12-315.
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