Posted on: 8/6/2012
Micael McGrory, SmithAmundsen
View Latest Articles
Anyone reading this surely recalls the fear that gripped the nation following the attacks of September 11, 2001, and the urgency with which Congress had to act to overhaul the entire national aviation security scheme. Just two months after 9/11, Congress passed the Aviation and Transportation Security Act ("ATSA"), establishing the Transportation Security Administration and implementing a number of other provisions designed to promote a secure aviation industry. Recognizing that air carrier employees are often the first line of defense when it comes to identifying security threats, ATSA grants carriers immunity for reporting suspicious activities, stating:
Any air carrier or foreign air carrier or any employee of an air carrier or foreign air carrier who makes a voluntary disclosure of any suspicious transaction relevant to a possible violation of law or regulation, relating to air piracy, a threat to aircraft or passenger safety, or terrorism…to any employee or agent of the Department of Transportation, the Department of Justice, and Federal, State or local law enforcement officer, or any airport or airline security officer shall not be civilly liable to any person under any law or regulation of the United States, any constitution, law or regulation of any State or political subdivision of any State, for such disclosure.
49 U.S.C. § 44941(a).
However, the immunity granted in subsection (a) is inapplicable to:
(1) any disclosure made with actual knowledge that the disclosure was false, inaccurate, or misleading; or (2) any disclosure made with reckless disregard as to the truth or falsity of that disclosure.
49 U.S.C. § 44941(b).
ATSA's air carrier immunity is sensible and important. Law enforcement resources are limited; they cannot be everywhere at once, and necessarily rely on the eyes and ears of thousands of airline employees to identify suspicious activities. And these employees should be encouraged to err on the side of caution in making reports. Everyone has heard the Department of Homeland Security mantra: "If you see something, say something." This mantra would be of little avail if people feared civil liability for reporting an activity that may seem suspicious but turns out innocuous.
Nevertheless, in the handful of reported decisions that have dealt with § 44941 at length, no court has allowed immunity. Instead, courts have read the statute very narrowly, ruled that factual questions preclude early determination of immunity, found an exception that is not within the language of the statute, and let stand a $1.2 million defamation judgment where an air carrier employee's report to TSA was found to be exaggerated. Based on these decisions, it is unclear under what circumstances, if ever, an air carrier would be entitled to use the shield § 44941 was intended to provide.
The first cases addressing ATSA immunity were based on incidents that occurred in those fearful months immediately following 9/11. In Dasrath v. Continental Airlines, 228 F. Supp. 2d 531 (D.N.J. 2002), one of the plaintiffs, Cureg, loaned his cell phone to an acquaintance in the terminal. Cureg then boarded the flight and sat in his first class seat. The acquaintance soon followed and returned the phone with a "thank you" while heading to his coach seat. During a delay (for security to re-examine some baggage), the acquaintance left his seat and sat next to Cureg in first class. The other plaintiff, Dasrath, was seated behind the two. A passenger reported to the flight crew that the "three brown-skinned men" were behaving suspiciously. An airline official escorted the men from the plane, and they were rebooked on a later flight after a brief investigation. The court denied the airline's Rule 12(b)(6) motion to dismiss the discrimination lawsuit, finding that ATSA immunity applies only to disclosures made by the airline, not to actions taken on the basis of disclosures. Another court made a nearly identical ruling in the case of a passenger who was ejected on the day after the infamous "Shoe Bomber" incident, finding that § 44941 "specifically applies to the disclosure of suspicious activities, not the actions taken pursuant thereto." Bayaa v. United Airlines, Inc., 249 F. Supp. 2d 1198 (C.D. Cal. 2002) (emphasis in original). Although the plaintiffs in these cases committed no wrongdoing, there was no indication that the reporting employees acted in bad faith. This hyper-technical interpretation of § 44941 admittedly finds some support in the language of the statute itself, but from a practical perspective, emasculates the immunity intended by Congress. It is of little benefit to shield a carrier for reporting suspicious activities, but leave the carrier vulnerable for any action taken in response to such a report, especially when the statute contemplates the involvement of a carrier's security officials.
In Hansen v. Delta Airlines, 2004 U.S.Dist. LEXIS 4150 (N.D. Ill. 2004), an employee claiming immunity reported to police that a passenger said the word "bomb." The passenger sued, and denied in her complaint that she uttered "bomb." The court rejected the defendant's motion to dismiss, finding a question of fact with respect to whether the passenger said "bomb." In its holding, the court noted that evidence that the plaintiff made the statement might defeat her claim. But the court's focus on whether the passenger said the word "bomb" does not allow for the possibility that the airline employee believed in good faith that she heard the word "bomb," even if her belief was mistaken. Thus, under Hansen, immunity would apply only where the airline's suspicion is borne out; in other words, immunity attaches only when immunity is not required. Another difficulty presented by Hansen is that the value of immunity under ATSA is severely limited if a plaintiff can force a defendant to engage in discovery, and possibly even trial, by pleading that the airline employee's suspicion was wrong or in bad faith.
Shqeirat v. U.S. Airways Group, Inc., 515 F. Supp. 2d 984 (D. Minn. 2007), illustrates another way a plaintiff may be able to avoid immunity through pleading. There, the plaintiffs, six imams, were returning home from a conference. Awaiting their flight, three of the plaintiffs prayed in the terminal while the other three watched over their luggage. When the men boarded, they initially sat in their assigned seats. But then one of the plaintiffs switched seats with a passenger to sit next to a second plaintiff who was blind. When a third plaintiff requested a seatbelt extension, one of his companions, who was seated in first class, went to the coach cabin and offered to switch seats. When he returned, he also requested a seatbelt extension. Airport police were called and escorted the plaintiffs from the plane. In the civil rights suit that followed, the court denied the airline's motion to dismiss, finding that the plaintiffs' allegation that the airline acted in concert with the police to effectuate a false arrest brought their claims outside the protection of § 44941.
Most recently, and in the only § 44941 case from a court of review, the Colorado Supreme Court upheld a $1.2 million dollar compensatory and punitive damages judgment despite the airline's claim of immunity under ATSA. Air Wisconsin Airlines Corp. v. Hoeper, --- P.3d ----, 2012 WL 907764 (Colo. March 19, 2012). There, the plaintiff was a pilot for Air Wisconsin, and was also a federal flight deck officer, meaning that he was allowed to carry a TSA-issued firearm. He had failed three aircraft proficiency tests, and knew a fourth failure would result in his termination. In the fourth test, the plaintiff became very angry and accused the test administrator of sabotage. The test administrator reported the confrontation to an Air Wisconsin manager. The manager called TSA more than two hours later, and reported that the plaintiff had been fired from his job, was mentally unstable, and might be armed. The court engaged in a discussion of ATSA, noting that "Congress intended to confer upon air carriers the greatest possible degree of protection by enacting the immunity provision." The court also recognized that "important policy considerations underlie the grant of immunity," and that TSA instructs airlines to report suspicious activity even if unsure that a threat exists. Nevertheless, the court found that the manager's report was exaggerated and made with reckless disregard for the truth—the manager should have reported that the plaintiff knew he would be terminated soon (not that he was already terminated), that he had acted irrationally (not that he was mentally unstable), and that he was a federal flight deck officer (not that he might be armed). One justice, in a stinging dissent, argued that the manager's report to TSA was substantially true, and wrote that the majority's opinion would subject every false alarm to a defamation judgment, and thus eviscerate § 44941 immunity and undermine the aviation security system.
These decisions are, of course, discouraging for air carriers and the attorneys who represent them. At first blush, the immunity conferred by ATSA is both broad and well-grounded in sound public policy; yet in practice air carriers have found little success in using this shield to extricate themselves from lawsuits. Nevertheless, given the small number of published opinions on § 44941, the lack of appellate level analysis, and the sensible public policy underpinning the immunity, the tide could turn, and air carriers could well find themselves armed with a powerful tool to combat claims related to the reporting of suspicious activities.
Michael McGrory is a partner with SmithAmundsen's Aerospace Practice Group in Chicago; he serves as the DRI Aviation Committee Expert Witness Database Chair and is active in the Chicago Bar Association's Aviation Committee.
Katherine Calhoun is a law clerk at SmithAmundsen and expects her J.D. from Chicago-Kent College of Law in May 2012.