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SCOTUS: Malice Standard Alive and Well in ATSA Immunity Case

By Gabriella Khorasanee, JD on February 07, 2014 | Last updated on March 21, 2019

This term, the Supreme Court of the United States had the opportunity to review a Colorado Supreme Court decision that dealt with immunity against civil liability under the Aviation and Transportation Security Act. Based on the long-accepted definition of malice, and statutory interpretation, the Supreme Court disagreed with the Colorado state courts' opinions, and reversed and remanded.


William Hoeper began working as a pilot for Air Wisconsin Airlines Corporation ("Air Wisconsin") in 1998, but in 2004, in order to retain his job, he had to pass certification on a different aircraft. Having failed the first three attempts, Air Wisconsin gave him a fourth and final attempt, with the understanding that he would be terminated if he did not pass. During the final simulation, Hoeper lost his temper, threw his headset and began yelling. A few hours later, Hoeper was on a flight back to Denver when the plane was ordered back to the gate, and Hoeper was removed, searched and questioned.

Such action was taken because Hoeper was a Federal Flight Deck Officer who is permitted to "carry a firearm while engaged in providing air transportation." The heightened concern about the possibility of Hoeper's carrying a firearm, together with his outburst, imminent firing, and past acts of violence by disgruntled airline employees, Hoeper's supervisors called the TSA and made the following assertions: (1) "that Hoper 'was an FDDO who may be armed'; (2) that Air Wisconsin was "concerned about his mental stability and whereabouts of his firearm;" and (3) that an "[u]nstable pilot in [the] FDDO program was terminated today."

Colorado Court Decisions

Hoeper initiated an action in Colorado state court claiming defamation, and Air Wisconsin claimed immunity for reporting suspicious activities under the ATSA. A jury found for Hoeper, and with varying analysis, all state courts affirmed.

SCOTUS Analysis

The Supreme Court had to determine whether "immunity can be denied without a determination that the air carrier's disclosure was materially false." Justice Sotomayor, writing for the court held that Congress adopted the "actual malice" standard set forth in New York Times v. Sullivan, and thus, immunity can be denied only where the statement is materially false. She came to this conclusion after examining the text and statutory construction of the ATSA. She then went on to discuss materiality, and applied the material falsity standard to the present case.

Justices Scalia, Thomas and Kagan concurred in part, and dissented in part. Though they agreed with Justice Sotomayor's legal analysis, they disagreed with her application of the material falsity standard to the facts of this case. Instead, the dissenters felt that question was better left to the lower courts.

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