When Donald Chance Mark, Jr. of Fafinski Mark & Johnson in Minnesota decided to petition the United States Supreme Court on the matter of whether airline employees may have broad flexibility to report potentially dangerous people to security officials, and to do so with immunity from being sued for reports that are materially true, he turned to partners Peter Keisler and Jonathan Cohn of Sidley’s Appellate practice.
“We recognized immediately that this was a vital matter involving national security,” recalled Cohn, who argued the case before the U.S. Supreme Court.
The facts behind Air Wisconsin Airlines Corp. v. Hoeper took place in 2004, when pilot William Hoeper failed to pass a simulator test to be certified to fly a particular type of aircraft. After failing on his fourth and final attempt, and knowing he was slated to be fired the following day, Hoeper responded angrily at the test site, tossing his headset, using profanity, and accusing the instructor on site of “railroading the situation.”
A case of national significance
Unnerved by Hoeper’s behavior, Air Wisconsin officials reported him to the Transportation Security Administration (TSA). The move was in keeping with the mandate set in place after September 11, 2001 requiring airlines to report suspicious activity to the agency.
TSA moved quickly, halting Hoeper’s flight to Denver and asking him to deplane. They searched him and his bags—concerned that he was a Federal Flight Deck Officer (FFDO) and therefore authorized to carry a weapon on an aircraft—but found him unarmed. Hoeper subsequently filed suit against Air Wisconsin for defamation, intentional infliction of emotional distress and false imprisonment.
Mark, who has more than 35 years of experience in handling aviation litigation, began representing Air Wisconsin with local counsel in 2008. A key part of the airline’s defense was based on a provision of the Aviation and Transportation Security Act (ATSA) that had been enacted in the wake of the September 11 attacks. It states that air carriers must report any suspicious activity to TSA, and that if they do so without actual knowledge of falsity or inaccuracy, or without reckless disregard for the truth, they will be immune from civil liability.
The stakes were high: a holding that airlines could be held liable for reporting true information about possible security threats or suspicious incidents might inhibit them from making reports at all, to the detriment of public safety.
Quest for appellate talent
Mark took the matter through the Colorado court system, culminating with a split decision in the Colorado Supreme Court affirming a jury verdict on the issue of defamation for Hoeper. (The jury found for Air Wisconsin on the issue of false imprisonment and was hung on the issue of intentional infliction of emotional distress.) A strong dissent from Justice Allison Eid, however, confirmed Mark’s argument that the case could have national repercussions and solidified his decision to seek certiorari.
“I then started the search to find outstanding counsel familiar with the U.S. Supreme Court,” he said. After a discussion with Peter Keisler, co-chair of Sidley’s Appellate practice, and Cohn, Mark was “very impressed” and hired Sidley.
Keisler and Cohn provided invaluable advice and suggestions in co-writing briefs and in seeking the Solicitor General’s support, Mark said. After the Court invited the Solicitor General’s views on Air Wisconsin’s cert petition, the team attended an in-person meeting with about 25 government officials, including representatives from TSA, the Solicitor General, the Federal Bureau of Investigation and Homeland Security. A few months after that meeting, the Solicitor General filed a brief supporting Air Wisconsin’s cert petition, and the Court decided to take the case.
“It was remarkable,” Mark said of the experience. “It was fascinating and enlightening to watch Peter and Jon. They had great insight into the Court and how the argument should be presented. Both of them were just really, really good at presenting our case.”
The teamwork between Mark and Sidley’s Appellate team, which also included associate Josh Fougere and legal assistants John Meehan and Randy Luce, yielded a decisive victory for Air Wisconsin in an opinion by Justice Sonia Sotomayor. The Court held that immunity against civil liability for reporting suspicious behavior under the ATSA may not be denied to materially true statements, and that Air Wisconsin’s report about Hoeper was materially true and thus entitled the airline to immunity as a matter of law.
Cohn attributes the win to Sidley’s ability to collaborate with the many players involved.
“We were very effective as a group in developing a strategy for amicus briefs and in convincing amici to support us,” said Cohn. “So much of what we do is about relationships and working effectively with trial counsel, co-counsel, and amici. That’s what sets us apart from other firms,” he added. “We just want to win, and we know that the best way to win is to work effectively as a team. Egos are checked at the door.”
For Mark, the case was more than a bit personal. His father flew for an airline for 33 years. His mother also worked as a stewardess for the same airline at a time when stewardesses were required to be registered nurses.
“I think they’d be proud,” he said.