U.S. Supreme Court Grants Certiorari On Significant Aviation Issues

Judith R. "Judy" Nemsick is a Partner in our New York office .

This spring, the U.S. Supreme Court granted certiorari to review two decisions that significantly affect the aviation industry, namely airline immunity under the Aviation and Transportation Security Act (ATSA) and preemption under the Airline Deregulation Act (ADA). Such review may result in reversal of the controversial decisions discussed below and provide much-needed guidance to the lower courts in these areas. Both cases will be argued during the October 2013 Term, with decisions expected in 2014.

Air Wisconsin Corp. v. Hoeper, No. 12-315

On June 17, 2013, the Court granted certiorari to review a defamation case involving application of the immunity provision in the Aviation and Transportation Security Act (ATSA). The ATSA, enacted after the terrorist attacks of September 11, 2001, is responsible for various measures to strengthen our national security system, including the creation of the Transportation Security Administration (TSA). Significantly, the ATSA recognizes that airline employees are often the first to receive and report information regarding potential security threats. In addition to requiring airlines to promptly report potential threats to TSA, the ATSA grants airlines and their employees broad immunity from liability subject to the narrow exception where the statements are made "with actual knowledge that the disclosure was false, inaccurate, or misleading" or "with reckless disregard as to the truth or falsity of that disclosure."1

In the Air Wisconsin case, the airline had reported its concerns about the air travel of a soon-to-be-terminated pilot who, during the his fourth proficiency test, exhibited irrational behavior and directed angry outbursts at his instructor. Importantly, the pilot was a Federal Flight Deck Officer (FFDO), which means he was authorized to carry a TSA-issued firearm. An Air Wisconsin manager with knowledge of the pilot's behavior communicated to the TSA that the pilot was about to travel and had been terminated that day, that there were concerns about his mental stability and that, as an FFDO, he might be armed. The pilot sued Air Wisconsin for defamation and was awarded $1.4 million in a jury verdict.

The Colorado Court of Appeals affirmed the verdict, and the Colorado Supreme Court, in a sharply divided 4-3 opinion, also affirmed. Holding that the issue of immunity was a question of law for the court, Colorado's high court...