Air Wisconsin Airlines Corp. v. Hoeper,
571 U.S. ___ (2014)

Annotate this Case



No. 12–315



on writ of certiorari to the united states court of appeals for the supreme court of colorado

[January 27, 2014]

     Justice Scalia, with whom Justice Thomas and Justice Kagan join, concurring in part and dissenting in part.

     I agree with the Court that under the Aviation and Transportation Security Act (ATSA), 49 U. S. C. §44901 et seq., an airline may not be denied immunity for a re-port it made to the Transportation Security Administration (TSA) absent a finding that the report was materially false. I also agree that, in this context, materiality means that the falsehood had a natural tendency to influence a reasonable TSA officer’s determination of an appropriate response to the report; and that neither the jury nor the courts below considered material falsity in this ATSA-specific way. I therefore join Parts I, II, and III–A of the Court’s opinion.

     Having answered the question we granted certiorari to decide, see 570 U. S. ___ (2013), I would stop there and remand the case for further proceedings. Instead, the Court proceeds to “apply the [ATSA] material falsity standard to the facts of this case” in the first instance, ante, at 13, and concludes as a matter of law that Air Wisconsin’s report to the TSA about William Hoeper was not materially false. In so holding, the Court in my view reaches out to decide a factbound question better left to the lower courts, and then proceeds to give the wrong answer. I therefore respectfully dissent from Part III–B and the disposition.

     We have held that under the First Amendment, a court’s role is to determine whether “[a] reasonable jury could find a material difference between” the defendant’s statement and the truth. Masson v. New Yorker Magazine, Inc., 501 U. S. 496, 522 (1991) . That makes sense, since materiality is the sort of “ ‘mixed question of law and fact’ ” that “has typically been resolved by juries.” United States v. Gaudin, 515 U. S. 506, 512 (1995) . The jury has a vital role to play in the materiality inquiry, which entails “ ‘delicate assessments of the inferences a “reasonable decisionmaker” would draw from a given set of facts and the significance of those inferences to him’ ” and is therefore “ ‘peculiarly one for the trier of fact.’ ” Ibid. (quoting TSC Industries, Inc. v. Northway, Inc., 426 U. S. 438, 450 (1976) ; brackets omitted). Such a question cannot be withdrawn from the jury unless “the facts and the law will reasonably support only one conclusion” on which “reasonable persons . . . could [not] differ.” McDermott Int’l, Inc. v. Wilander, 498 U. S. 337, 356 (1991) . The same rule applies to a determination of immunity from suit: When a defendant raises qualified immunity on summary judgment, the court must “adop[t] . . . the plaintiff’s versionof the facts” unless “no reasonable jury could believe it.” Scott v. Harris, 550 U. S. 372 –380 (2007).

     Therefore, if we are to apply the ATSA materiality standard to the complex record in this case in the first instance, it is proper to view “the historical facts in the manner most favorable to Hoeper,” as the Court purports to do. Ante, at 13. We must of course begin by taking as given the findings that we know the jury already made, including that Air Wisconsin told the TSA that the airline was “concerned about [Hoeper’s] mental stability” and that he was an “[u]nstable pilot,” App. to Pet. for Cert. 111a (special verdict form), and that those statements were false, 2012 WL 907764, *10 (Colo., Mar. 19, 2012). Next, we must ask whether a reasonable jury could find the remaining historical facts to be such that those statements were not only false, but materially false from the perspective of a reasonable TSA agent. If not, judgment for Air Wisconsin is proper; but if so, the ATSA materiality question should be tried to a (properly instructed) jury. (Unless, of course, a reasonable jury would be compelled to find facts that would render the statements materially false, in which case judgment for Hoeper would be proper; but that is assuredly not the case here.)

     Applying that reasonable-jury standard, I do not see how we can possibly hold as a matter of law that AirWisconsin’s report was not materially false. The Court acknowledges Hoeper’s description of the confrontation that spawned the airline’s threat report: After failinga flight simulator test, Hoeper “decided ‘that’s it,’ heremoved his headset and ‘toss[ed] it,’ and he accusedthe instructor—at an ‘elevated decibel level,’ and withan expletive—of ‘railroading the situation.’ ” Ante, at 15 (quoting App. 203–204). A jury could credit Hoeper’s account. It could also believe his “overarching factual theory” that his anger was reasonable because the instructor had “manipulate[d]” the test to cause him to fail out of “personal animosity,” ante, at 16—a theory that was not without supporting evidence, see, e.g., App. 259–260 (pilot testifying as expert witness that Hoeper’s testing was “absolutely unfair” and “biased”). Moreover, there was evidence from which a jury could conclude that no one who interacted with Hoeper during or after the confrontation—including the instructor—viewed him as either unstable or threatening. See, e.g., id., at 15–16 (instructor acknowledging that he “ ‘quickly realized it wasn’t a threatening situation’ ”); id., at 29–31 (instructor testifying he “ ‘never felt that [Hoeper] was going to go do something stupid,’ ” “ ‘didn’t believe that Mr. Hoeper posed a threat in any way to anybody else at all,’ ” “ ‘did not believe that Mr. Hoeper was engaging in irrational behavior,’ ” and “ ‘deem[ed] him perfectly safe to get on an airplane’ ”); id., at 462 (airline representative who gave Hoeper permission to fly home testifying he “had no concern that [Hoeper] was a physical threat to anybody” and “didn’t believe he was mentally unstable”).

     In short, 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. Viewing the facts in that light, I cannot agree with the Court thata reasonable TSA official would not “consider . . . important,” ante, at 13, the difference between an individual who engaged in this sort of heated but commonplace display of anger, on the one hand, and on the other, anindividual whose colleagues regard him as “mentally unsta-ble.” It is the difference between a category that no doubt includes millions of perfectly harmless air travelers and one that, in ordinary parlance, connotes an alarming degree of unpredictability and aggressiveness. Indeed, we have used that term in connection with individuals so “dangerously mentally ill” that they may be subject to civil confinement. Kansas v. Hendricks, 521 U. S. 346, 363 (1997) . The importance of that difference was highlighted by the expert testimony in this case of a former TSA Federal Security Director, who stated—based on a version of the underlying facts the jury was entitled to accept—that Hoeper’s behavior did not warrant any report to the TSA. App. 356.[1]*

     The association with dangerous mental illness is not, as the Court suggests, merely one “connotation of the phrase ‘mental [in]stability’ ” among many, ante, at 17; it is the everyday understanding of that phrase. The Court says that this is “hardly the only manner in which the label is used,” ibid., but it does not even attempt to describe another usage, let alone one that would be a materially accurate description of the facts of this case as a jury might find them. The Court also suggests that the circumstances of this case—particularly the fact that Hoeper knew his firing was imminent, had reason to be angry with the airline, and was authorized to carry a firearm—distinguish Hoeper’s confrontation with the instructor from an ordinary “fit of pique.” Ibid. But if so, it was all the more important for the airline to make an accurate report to the TSA, so that the agency could assess the possible danger and determine an appropriate response. Falsely reporting to the TSA that a young Irishman is an IRA terrorist is much more likely to produce a promptand erroneous response than reporting that a 70-year-old English grandmother is. The circumstances the Court identifies enhanced, rather than diminished, the likelihood that the false “mentally unstable” designation would have a material effect on the TSA’s response.

     In sum, it is simply implausible that, taking the facts of this case in the light most favorable to Hoeper, a reason-able jury would have to find that the report of mental in-stability would have no effect upon the course of action determined by the TSA. The Court’s holding to the contrary demonstrates the wisdom of preserving the jury’s role in this inquiry, designed to inject a practical sense that judges sometimes lack. I respectfully dissent from that holding.


1 * The Court dismisses the former Director’s testimony because he testified that in making threat reports to the TSA, airline officials should use “common sense” to “filter out the garbage and report [only] really suspicious incidents,” App. 356, a view the Court deems “flatly at odds with the ATSA,” at 17. The ATSA, however, simply requires airlines to report “threat[s] to civil aviation,” . The statute surely places a heavy thumb on the scale in favor of reporting, but it certainly does not preclude the exercise of reasonable judgment in deciding what rises to the level of a “threat” and what constitutes, as the former Director put it, irrelevant “garbage.” And even if one disagrees with the former Director that no report should have been made at all, the point is that a reasonable jury could have considered his testimony relevant to establishing that falsely expressing concerns about an individual’s “mental stability” in the circumstances of this case would have a material effect on the TSA’s decisionmaking process.
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