Rewrite This Sentence


by Justice Bill BoyceFourteenth Court of Appeals

One of the best bits in the 1980 disaster spoof “Airplane” features Lloyd Bridges.

While officials huddle in the control tower debating how to save the stricken aircraft of the movie’s title, Bridges appears as tower supervisor Steve McCroskey in a series of cameos. McCroskey gradually becomes unhinged as the peril mounts and the pressure intensifies.

With each appearance, an increasingly agitated McCroskey observes: “Looks like I picked the wrong week to give up . . . .” The list of vices he unwisely has given up this week starts with smoking, moves to drinking, and goes downhill from there.

These scenes came to mind as I read the facts in Air Wisconsin Airlines Corp. v. Hoeper, 134 S. Ct. 852 (Jan. 27, 2014). The takeaway: It always is a bad idea to lose your cool in a high pressure, aviation-related situation.

When pilot William Hoeper failed in his fourth and final attempt to pass a proficiency test, he ripped off his headset and exchanged angry words at an “elevated decibel level” with the instructor operating the flight simulator. Hoeper’s failure to pass this test guaranteed that he would be fired from Air Wisconsin.

These circumstances prompted an Air Wisconsin official to call the Transportation Safety Administration. He reported that (1) Hoeper was authorized under federal law to carry a firearm on board an aircraft; (2) the airline was “concerned about his mental stability and the whereabouts of his firearm;” and (3) Hoeper was an “[u]nstable pilot” who “was terminated today” by Air Wisconsin.

The TSA responded to this call by requiring the Denver-bound plane on which Hoeper was a passenger to return to the gate. Hoeper was removed and questioned.

Hoeper responded to this call by suing Air Wisconsin for defamation in Colorado state court. His claims were tried to a jury; based on the verdict, the trial court signed a $1.2 million judgment in his favor. The intermediate court of appeals and the Colorado Supreme Court affirmed.

The United States Supreme Court reversed in an opinion written by Justice Sotomayor and joined in full by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, and Alito. Justices Scalia, Thomas, and Kagan concurred in part and dissented in part.

The majority concluded that Air Wisconsin enjoyed statutory immunity from a defamation claim based on a report to the TSA under the Aviation and Transportation Security Act because “a statement otherwise eligible for ATSA immunity may not be denied immunity unless the statement is materially false.” The majority held that, as a matter of law, the statements at issue were not materially false.

The dissenters agreed with the material falsity standard but wanted to remand for the lower courts to decide whether the statements were materially false.

Two facets of the majority opinion caught my eye.

First, the lower court opinions expressed disagreement about whether material falsity is a question of fact to be determined by the jury or a question of law to be determined by a court. The Supreme Court punted on this issue; it declined to resolve this disagreement and essentially said that the statements at issue here are not actionable regardless of who makes the determination.

Second, the Supreme Court remanded the case for “proceedings not inconsistent with this opinion.”

These facets prompt some personal reactions.

One reaction harkens back to when I practiced law. In that role, I thought a remand for “proceedings not inconsistent” was . . . well, let’s say, unsatisfying.

Now that I write opinions instead of briefs, I can see the wisdom (or at least the jurisprudential desirability) of drafting an opinion narrowly to avoid deciding more than is necessary to resolve the specific issue raised on appeal. Writing narrowly involves considerations about the proper role of an appellate court and avoiding unintended consequences from unnecessary language in opinions. I’ve used this formulation myself in opinions, recognizing that the lawyers and the trial court probably don’t like it any better than I once did.

My other reaction is to wonder how material falsity can be decided in this particular case without determining who makes the decision, jury or judge. Making a material falsity determination “as a matter of law” sounds a lot like a holding that the court gets to decide this issue. But I could be wrong.

Maybe I’ll ask Steve McCroskey for his thoughts.