Supreme Court ruling backs airlines in reporting possible threats


Supreme Court Justice Antonin Scalia, shown in 2013, wrote that the right legal standard was used but went too far in the case of former Air Wisconsin pilot William Hoeper. (Josh Reynolds/AP)

Congress intended airline employees to have broad leeway in reporting potentially dangerous people to security officials, the Supreme Court ruled Monday, and they cannot be sued for defamation as long as the reports they make are substantially true.

That was bad news for former Air Wisconsin pilot William Hoeper, who had successfully sued the airline for defamation after supervisors told the Transportation Security Administration that he was a potential security threat and he was pulled off a flight on which he was a passenger.

The court ruled 6 to 3 that Hoeper was not entitled to the $1.2 million award he received — an award the Colorado Supreme Court had upheld.

The decision was among three the U.S. Supreme Court handed down on Monday. In the others, both written by Justice Antonin Scalia, the court decided that the government must prove that a drug user’s death is directly linked to the drug dealer before the dealer can be subjected to an “enhanced” sentence and that workers do not have to be paid for the time they spend “donning and doffing” protective gear necessary for their work.

In the Hoeper case, Justice Sonia Sotomayor said the law gives airline employees immunity in most cases to help ensure that they will freely report even marginal security concerns.

“In directing the TSA to ‘receive, assess, and distribute intelligence information related to transportation security,’ Congress wanted to ensure that air carriers and their employees would not hesitate to provide the TSA with the information it needed,” Sotomayor wrote for the majority. “It would defeat this purpose to deny immunity for substantially true reports, on the theory that the person making the report had not yet gathered enough information to be certain of its truth.”

The 2004 incident came at a tense time for Hoeper and his employer. Air Wisconsin Airlines was about to begin using a new aircraft and required its pilots to pass a test on the new plane. Hoeper had failed three times and was told that if he failed again, he would be fired.

At his test at a facility in Northern Virginia, Hoeper said administrators were sabotaging him. He quit, angrily swore at those conducting the tests and said he was calling a union lawyer.

The tester called Hoeper’s supervisor, Patrick Doyle, who booked Hoeper on a flight home from Washington’s Dulles International Airport to Denver and arranged for an employee to drive him to the airport.

But after discussing the incident with other Air Wisconsin officials, Doyle called the TSA. Doyle said that Hoeper was an “unstable pilot” who was being terminated and that he was “concerned” about the whereabouts of a gun Hoeper was authorized to carry as a federal flight deck officer.

Those concerns turned out to be unfounded, and Hoeper sued, saying Doyle’s comments were so reckless that they defamed him and that the immunity the airlines receive in making security reports should not apply.

But Sotomayor said the airline is protected.

“All of us from time to time use words that, on reflection, we might modify,” she wrote. “If such slips of the tongue could give rise to major financial liability, no airline would contact the TSA (or permit its employees to do so) without running by its lawyers the text of its proposed disclosure — exactly the kind of hesitation that Congress aimed to avoid.”

Scalia wrote that the court got the right legal standard but said in his dissent that the justices went too far in applying it in Hoeper’s case.

Scalia said he thought a jury could find the statements of the Air Wisconsin supervisor to be misleading and exaggerated.

“A jury could find that Hoeper did nothing more than engage in a brief, run-of-the-mill, and arguably justified display of anger that included raising his voice and swearing, but that did not cause anyone, including the person on the receiving end of the outburst, to view him as either irrational or a potential source of violence,” Scalia wrote. He was joined by Justices Clarence Thomas and Elena Kagan.

The immunity in the law doesn’t apply when the employee knows the information to be false or when acting with “reckless disregard to the truth or falsity” of the information.

That exception is patterned after the standard the Supreme Court has set in its First Amendment jurisprudence. As a result, a number of media organizations, including The Washington Post, filed an amicus brief siding with Air Wisconsin and urging the court not to relax that requirement. The Obama administration also backed the airline.

The case is Air Wisconsin Airlines Corp. v. Hoeper.

Proving death from drug

In the drug case, a dealer named Marcus Burrage sold Joshua Banka a gram of heroin in 2010. Banka was about to enter a drug rehabilitation program but went on one last binge, ingesting Oxycontin, marijuana and prescription drugs, as well as the heroin.

By the next morning, Banka was dead. Burrage eventually was charged with distributing heroin and received an additional 20 years in prison for distributing a serious drug when “death or serious bodily injury results from the use of such substance.”

Experts at Burrage’s trial could not swear that it was the heroin alone that killed Banka. But Burrage was convicted after a federal district judge told the jury that it was enough for the government to prove that the heroin was a contributing cause of death.

The justices unanimously agreed that the lower courts and the government were wrong.

“The language Congress enacted requires death to ‘result from’ use of the unlawfully distributed drug, not from a combination of factors to which drug use merely contributed,” Scalia wrote. “We cannot give the text a meaning that is different from its ordinary, accepted meaning.”

Scalia said that five states have passed laws that adopt the contributing language the government urges and that Congress could do the same if that is what it intended.

The case is Burrage v. U.S.

No pay for gearing up

The court also agreed that workers do not have to be paid for the time they spend putting on protective gear for their jobs. Workers for U.S. Steel had said that federal law mandated they should be paid, even though their union had agreed with the company that they need not be paid for time spent “changing clothes.”

Scalia said the case required the court to define both “changing” and “clothes.” In the end, the justices unanimously rejected the argument that the protective garments the workers don are not clothes.

“We see no basis for the proposition that the unmodified term ‘clothes’ somehow omits protective clothing,” he wrote.

The case is Sandifer v. United States Steel.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006. He gave up law school plans for a life in newspapers after taking a journalism class in college. It did not occur to him, as it apparently did to others, that he could do both.
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