Supreme Court Action: Reporting Suspicious Activity to the TSA and the Meaning of “Clothing”

The Supreme Court issued three opinions yesterday.  The first of these is Air Wisconsin Airlines Corp. v. Hoeper (12-315).  Hoeper was a pilot with Air Wisconsin and flew planes out of Denver (his home base) for Air Wisconsin.  The company changed the type of plane it flew out of Denver which required Hoeper to become certified for the new aircraft.  He failed in three attempts at gaining certification and worked out an arrangement with Air Wisconsin for a fourth and final attempt.  Hoeper flew to Virginia to take the test.  The simulator instructor created a scenario where the engines failed due to a loss of fuel.  Hoeper blew up at the instructor by all accounts and claimed the instructor was railroading him.  Air Wisconsin then booked Hoeper on a United Airlines flight back to Denver.

The details of the encounter were reported to Air Wisconsin and discussed by executives from the company.  They had concerns about Hoeper’s mental state and considered him to be potentially a disgruntled employee.  Hoeper was also a Federal Flight Deck Office (FDDO) which legally permitted him to carry a gun on the flight deck.  The combination of circumstances caused enough concern that a representative of Air Wisconsin reported the information to the Transportation Security Administration.  Hoeper was pulled from the plane and questioned about the location of his gun.  Hoeper said it was at his home in Denver.  Federal then agents went to his home and retrieved the weapon.  Hoeper boarded a later flight.  He was fired the next day.

Hoeper later sued Air Wisconsin for defamation in Colorado state court over statements made to the TSA.  These included statements that Hoeper “was an FFDO who may be armed” and that Air Wisconsin “concerned about his mental stability and the whereabouts of his firearm” Further statements included that an “[u]nstable pilot in [the] FFDO program was terminated today.”

Air Wisconsin defended on 49 U.S.C §4491(a) which gave immunity to airlines and employees from reporting suspicious activity to the TSA.  The exception to this immunity is in §44941(b), where the disclosure is “made with reckless disregard as to the truth or falsity of that disclosure.”  The trial court denied Air Wisconsin’s motions for summary judgment and a directed verdict.  It sent both the immunity question and the liability question to the jury which found for Hoeper.  The Colorado Supreme Court affirmed though it said the immunity question was a question of law for the trial judge and not the jury.  In any event, it was harmless error.

The Supreme Court reversed.  The Court stated that immunity under the statute may not be denied when the statements are materially true.  The immunity section of the law is patterned under the actual malice standard of New York Times Co. v. Sullivan.  Congress presumably incorporated the standard as settled law when it passed the Air Transportation Safety Act.  The statute promoted the reporting of suspicious activity and did not deny immunity to true statements made recklessly.  The Colorado courts did not perform a material falsehood analysis in the handling of the case.  While the actual statements made to the TSA could have been made a bit more artful, they were more or less materially true. 

Justice Sotomayor delivered the opinion of the Court and was joined by Chief Justice Roberts, and Justices Kennedy, Ginsburg, Breyer, and Alito.  Justices Scalia, Thomas, and Kagan joined as to Parts I, II, and III-A.  Justice Scalia filed an opinion concurring in part and dissenting in part and was joined by Justices Thomas and Kagan.  Justice Scalia chides the Court for having applied the material falsehood standard to the facts of the case.  He would rather stop with ordering the Colorado courts to decide that issue in further proceedings.

The second case is Sandifer v. United States Steel Corp. (12-417).  A group of present and former employees sued United States Steel under the Fair Labor Standards Act over back pay for the time spent “donning and doffing” protective gear required by U.S. Steel due to hazards in its steel plants.  §203(o) of the Act makes this a matter for collective bargaining.  In this case, the contract between the union and the company makes this non-compensable.  This would be the end of the case but for the union’s attempt to take protective gear out of the definition of “clothing.”

The District Court concluded that protective gear in this case does fit the definition of clothing and granted summary judgment to U.S. Steel.  The Seventh Circuit affirmed.  The Supreme Court affirmed those decisions and said donning and doffing protective gear is not compensable by operation of §204(o).  The Court examined the history and dictionary usage of the word “clothes” and concluded that protective gear is part of the definition of clothes. 

There were some issues with three items, safety glasses, ear plugs, and respirators.  Lower courts invoked the doctrine of de minimis non curat lex (the law does not take account of trifles) in dealing with these items.  The Court said that was the wrong approach to a statute which is all about trifles.  The better approach is to ask whether the period on the whole can be characterized as time spent changing clothes or washing.  §203(o) does not apply if an employee spends most of time to putting on or taking off equipment even if donning and doffing some clothing as well.  §203(o) does apply if the majority of time is spent donning and doffing clothes even if it includes some of these non-clothes protective devices.  The Court will not disturb the District Court’s factual finding that respirators were donned and doffed throughout the work day, placing the activity beyond the scope of the statute.

Justice Scalia and joined by all other justices with the exception of Justice Sotomayor who joined with the exception of footnote 7.

I will cover the third opinion on Wednesday. – Mark 

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