Jessica M. Karmasek Sep. 6, 2013, 5:30pm

WASHINGTON (Legal Newsline) -- DRI: The Voice of the Defense Bar has filed an amicus brief to the U.S. Supreme Court, saying a state high court's ruling that a commercial airline is not entitled to immunity in a defamation lawsuit brought against it by one of its pilots should be reversed.

DRI sided with petitioner Air Wisconsin Airlines, a Delaware corporation. The airline employed plaintiff William Hoeper as a pilot.

The Transportation and Security Administration had issued Hoeper a firearm under a federal statute that authorizes the TSA to deputize volunteer pilots as federal law enforcement officers.

After discontinuing its use of the type of aircraft Hoeper had piloted for many years, Air Wisconsin required him to undertake training and pass a test certifying his proficiency in piloting a different aircraft. Hoeper failed three such tests.

Air Wisconsin gave Hoeper one last opportunity to pass the test. Hoeper knew that he would likely lose his job if he failed it for a fourth time.

However, during the last test, Hoeper became angry with test administrators because he believed they were deliberately sabotaging his testing.

After Hoeper left the testing facility, an airline manager involved in his testing later called the TSA to report Hoeper as a possible threat.

A jury found that the manager made two statements to the TSA:

- Hoeper was an federal flight deck officer, or FFDO, who may be armed. He was traveling from IAD-DEN later that day and we were concerned about his mental stability and the whereabouts of his firearm; and

- An unstable pilot in the FFDO program was terminated today.

In response, TSA officials arrested Hoeper and searched him.

Hoeper later sued in Colorado against Air Wisconsin for defamation under Virginia law, among other claims.

Air Wisconsin moved for summary judgment, asserting that it was entitled to immunity as a matter of law under the Aviation and Transportation Security Act.

The trial court denied the motion because it determined that the jury was entitled to resolve disputed issues of fact that controlled the determination of immunity.

Air Wisconsin also moved for a directed verdict under the same theory after the close of evidence, which the trial court also denied.

The trial court instructed the jury on the components of ATSA immunity and told the jury it could not find for Hoeper on the defamation claim if it determined that Air Wisconsin was immune under the ATSA. The jury returned a verdict in favor of Hoeper.

It found by clear and convincing evidence that the two statements were defamatory and that Air Wisconsin made one or more of the statements "knowing that they were false, or so recklessly as to amount to a willful disregard for the truth."

The airline appealed and the Colorado Court of Appeals affirmed.

The appeals court determined that the question of whether the judge or jury decides immunity under the ATSA is a procedural issue governed by Colorado law. It concluded that, under Colorado law, the trial court properly allowed the jury to determine whether the ATSA granted Air Wisconsin immunity in this case.

The court also determined that clear and convincing evidence supported the jury's finding of actual malice and that the statements the manager made were not protected as opinion or as substantially true.

Air Wisconsin petitioned Colorado's high court for review.

The court, in its March 19, 2012 opinion, concluded that the trial court erred by submitting to the jury the question of whether Air Wisconsin was immune from the lawsuit.

The error, however, is "harmless," it said, because the airline is not entitled to immunity.

"In addition, our independent review of the record reveals clear and convincing evidence to support a finding of actual malice," Justice Nancy E. Rice wrote for the court.

"We also hold that Air Wisconsin's statements are not protected as opinion and that the evidence is sufficient to support the jury's determination that the statements were false."

The court affirmed the judgment of the state appeals court.

DRI argues that the Colorado Supreme Court upheld a verdict against an airline that did "exactly what Congress would have wanted it to do."

The defense bar, in its amicus brief, argues that ATSA's language and purpose require that Air Wisconsin's immunity should be upheld and that the judgment of the state Supreme Court should be reversed.

DRI maintains that the judgment is incompatible not only with the views of Congress in passing ATSA, but also with the views expressed by the government in its amicus briefs to the Colorado Supreme Court and the U.S. Supreme Court in support of certiorari.

"Is there any responsible way that Air Wisconsin could have decided not to inform TSA? Failure to report this potential security threat could have been a mistake with catastrophic ramifications," the defense bar said in a statement this week.

"The Colorado Supreme Court relied instead on 'hair-splitting distinctions' between the wording of Air Wisconsin's report and the slightly different language that the majority held would qualify for immunity."

The nation's high court granted review on the following question: "Can ATSA immunity may be denied without a determination that the air carrier's disclosure was materially false?"

The case currently is on the court's docket for the October term. The date for oral argument has not yet been scheduled.

From Legal Newsline: Reach Jessica Karmasek by email at

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