Lead Opinion
delivered the Opinion of the Court.
T1 In this defamation action, we address whether a trial court must decide before trial if a party is immune from liability pursuant to the Aviation and Transportation Security Act (ATSA), 49 U.S.C. section 44941 (2006). Applying the principles of federal qualified immunity to the immunity conferred by the ATSA, we conclude that the trial court in this case erred by submitting to the jury the question of whether Air Wisconsin was immune from suit This error, however, is harmless because we conclude that Air Wisconsin is not entitled to immunity. In addition, our independent review of the record reveals clear and convincing evidence to support a finding of actual malice. 'We also hold that Air Wisconsin's statements are not protected as opinion and that the evidence is sufficient to support the jury's determination that the statements were false. Accordingly, we affirm the judgment of the court of appeals.
I. Bagkg‘round
12 Air Wisconsin, a commercial airline, employed William Hoeper as a pilot. The Transportation Security Administration (TSA) had issued Hoeper a firearm under a federal statute that authorizes TSA to deputize volunteer pilots as federal law enforcement officers "to defend the flight decks of aircraft ... against acts of criminal violence or air piracy." 49 U.S.C. $ 44921(a) (2006). Such a pilot is known as a federal flight deck officer (FFDO). Id.
18 After discontinuing its use of the type of aircraft that Hoeper had piloted for many years, Air Wisconsin required Hoeper to undertake training and pass a test certifying his proficiency in piloting another type of aircraft. Hoeper failed three such tests. Patrick Doyle, a manager at Air Wisconsin involved in Hoeper's testing, testified that after the second failed test, Hoeper lost his temper with Doyle. Doyle's contemporaneous notes of the second test day, however,
T4 After the three failed tests, Air Wisconsin gave Hoeper one last opportunity to pass the test. Hoeper knew that he would likely lose his job if he failed this fourth test. He flew from his home in Denver to Virginia to take the fourth test.
5 During the test, Hoeper became angry with the test administrators because he believed that the test administrators were deliberately sabotaging his testing. One administrator, Mark Schuerman, testified at trial that Hoeper ended the test abruptly, raised his voice at Schuerman, and used profanity. Schuerman testified that Hoeper's outburst startled him and that he feared for his physical safety during the confrontation, but not after the confrontation ended. Testimony also established that Hoeper told Schuerman that Hoeper intended to call the legal representative of the airline pilots' union to which he belonged.
16 After Hoeper left the testing facility, Schuerman told Doyle about the confrontation. Specifically, Schuerman testified that he told Doyle only that Hoeper blew up at him and was "very angry with [him]." Schuerman did not tell Doyle that he or anyone else at the testing center believed Hoeper would harm them or others. Doyle then instructed another Air Wisconsin employee who participated in the failed test to drive Hoeper to the airport and Doyle booked Hoeper on a flight from Virginia back to Denver. Doyle never sought nor received any additional information about the confrontation from others who were at the testing center that day or about Hoeper's demeanor after the confrontation.
T 7 Doyle knew that Hoeper was an FFDO pilot. He did not know if Hoeper had his government-issued firearm with him on the trip to Virginia, but he knew that Hoeper would have violated FFDO rules by carrying the firearm as a passenger on the airplane from Denver to Virginia. He also never sought nor received any additional information about whether Hoeper actually brought his firearm to Virginia.
T8 Based upon this information, Doyle called TSA to report Hoeper as a possible threat.
T9 The jury found that Doyle made two statements to TSA:
(a) [Hoeper] was an FFDO who may be armed. He was traveling from IAD-DEN later that day and we were concerned about his mental stability and the whereabouts of his firearm. (b) Unstable pilot in FFDO program was terminated today.
T10 In response, TSA officials arrested Hoeper and searched him.
{11 The day after this incident, Doyle made notes about the meeting with Hoeper that occurred immediately after the second failed test. Doyle wrote that, after Hoeper lost his temper, Doyle ended the meeting "for fear of [his] own physical harm." He also noted that "[alfter heated discussion with [Hoeper), and due to my concerns for my safety," Doyle did not fully fill out a certain FFA form regarding the failed test. Doyle later changed these notes to read "due
112 Hoeper brought this action in Colorado against Air Wisconsin for defamation under Virginia law, among other claims. The parties agree that Virginia law applies to the substance of Hoeper's claims in this case.
113 Air Wisconsin moved for summary judgment,
T 14 The trial court instructed the jury on the components of ATSA immunity and instructed that the jury could not find for Hoeper on the defamation claim if it determined that Air Wisconsin was immune under the ATSA. The jury returned a verdict in favor of Hoeper. The jury found by clear and convincing evidence that the two statements were defamatory and that Air Wisconsin made one or more of the statements "knowing that they were false, or so recklessly as to amount to a willful disregard for the truth."
4 15 Air Wisconsin appealed and the court of appeals affirmed. The court of appeals determined that the question of whether the judge or jury decides immunity under the ATSA is a procedural issue governed by Colorado law. It concluded that, under Colorado law, the trial court properly allowed the jury to determine whether the ATSA granted Air Wisconsin immunity in this case. The court of appeals also determined that clear and convincing evidence supported the jury's finding of actual malice and that the statements Doyle made were not protected as opinion or as substantially true. Air Wisconsin petitioned for certiorari, which we granted.
II. ATSA Immunity
116 Federal law, not Colorado law, controls our determination of whether the judge or jury decides the issue of immunity under the ATSA. Applying the federal law of qualified immunity, we conclude that the immunity conferred by the ATSA is immunity from suit, not merely immunity from liability for damages. The trial court must therefore determine before trial whether an air carrier is immune from suit Although the trial court in this case erred by submitting the question to the jury, the error is harmless because we conclude that Air Wisconsin is not entitled to immunity under the ATSA.
A. Federal Law Controls
{17 The court of appeals determined that the right to a civil jury trial in Colorado is procedural and therefore "the allocation of decision-making between judge and jury is a procedural question to be governed by Colorado law." Hoeper v. Air Wis. Airlines Corp.,
118 Colorado courts follow federal procedure when deciding immunity under federal law. For example, we look to federal procedures in determining whether a denial of summary judgment in a federal qualified immunity case is immediately appealable.
{19 Moreover, we must presume that, "in the absence of a plain indication to the contrary, ... Congress when it enacts a statute is not making the application of the federal act dependent on state law." Miss. Band of Choctaw Indians v. Holyfield,
B. Immunity Under the ATSA is Determined by the Court
120 Applying the purpose of federal qualified immunity law, we conclude that immunity under the ATSA is a question of law to be determined by the trial court before trial.
121 Federal law contains the judicially-created doctrine of qualified immunity, see Harlow v. Fitzgerald,
122 Because immunity under the ATSA is statutory, we also reference immunities conferred not by federal common law, but by federal statute. Immunity under the HCQIA, for example, only constitutes immunity from damages liability, not immunity from suit. Singh v. Blue Cross/Blue Shield of Mass., Inc.,
123 We have interpreted HCQIA immunity as constituting a question of law for the court to decide. Nicholos,
124 Because no federal court has addressed the immunity conferred by the ATSA, we first analyze the ATSA as federal courts would, by applying common principles of statutory construction. The ATSA provides that an air carrier who voluntarily discloses any suspicious transaction relevant to certain aircraft security statutes "shall not be civilly liable" to any person. 49 U.S.C. § 44941(a). Unlike the HCQIA, the ATSA immunity provision does not specifically refer to damages liability. We therefore cannot determine by reference to its plain language the type of immunity the ATSA confers. Moreover, the legislative history does not provide guidance as to the type of immunity intended by Congress. No prior versions of the bill exist, and Congress engaged in no discussion of the immunity standard.
4 25 Looking at federal statutory immunity and qualified immunity together, we analyze ATSA immunity according to the rationale underlying the distinction between immunity from suit and immunity from damages liability. Immunity from suit is a greater degree of protection than immunity from damages liability. Federal qualified immunity law includes this greater protection because it encourages public officials to undertake independent action on issues of public importance without fear of consequences. Mitchell,
126 Because the protection afforded by such immunity is lost if the air carrier is forced to proceed to trial, we conclude that the trial court must decide immunity under the ATSA as a matter of law before trial. If a factual dispute arises as a part of this inquiry, the trial court may hold a hearing and receive any competent evidence related to the matter. See, eg., Trinity Broad. of Denver, Inc. v. City of Westminster,
C. Determination of Immunity
127 Even where we have found an error, we do not reverse the trial court's judgment if the error is harmless. C.AR. 85(e); C.R.C.P. 61. Here, the error is harmless because Air Wisconsin is not entitled to immunity under the ATSA.
129 The ATSA provides that "[alny 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 aireraft or passenger safety, or terrorism" to certain officials including the TSA "shall not be civilly liable" under any law of any state. 49 U.S.C. § 44941(a). This provision, however, does not apply 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." § 44941(b).
$30 Assuming, without deciding, that Air Wisconsin's statements related to a "suspicious transaction" relevant to a threat to aircraft or passenger safety, we conclude based on the record evidence that the statements were made with reckless disregard as to their truth or falsity.
131 Under New York Times, in certain cireumstances a plaintiff must establish that a speaker published a statement with "actual malice," that is, "with knowledge that it was false or with reckless disregard of whether it was false or not." Id. To establish reckless disregard under this rule, the statements must have been made despite the speaker having a "high degree of awareness of ... probable falsity," or the speaker must have "entertained serious doubts as to the truth of his publication." St. Amant v. Thompson,
132 First, the evidence establishes that Doyle told TSA: (1) that he believed Hoeper to be mentally unstable; (2) that Hoeper had been terminated earlier that day; and (3) that Hoeper may have been armed. Although the events at the training may have warranted a report to TSA, as discussed below, we conclude these three statements overstated those events to such a degree that they were made with reckless disregard of their truth or falsity.
133 Testimony from the record demonstrates that, when he made the statements, Doyle knew that Hoeper expected to be fired for failing the test and that Hoeper had become very angry with Schuerman at the testing facility. Based on these minimal facts alone, Doyle could not form an opinion as to whether Hoeper was mentally unstable
134 In addition, the evidence establishes that Doyle's statement that Hoeper had been terminated that day was false and that Doyle knew it to be false. Although Hoeper likely would be terminated, no termination had yet occurred.
1835 The record evidence also establishes reckless disregard as to Doyle's statement that Hoeper may have been armed. Hoeper could have brought his weapon on the airplane back to Denver only under two factual scenarios. First, Hoeper could have gone through the security checkpoint and signed an FFDO logbook. But if Hoeper had done so, Doyle would have no reason to report that Hoeper may have been armed because TSA would already know that he was armed. Second, Hoeper could have attempted to sneak his weapon through the security checkpoint. Doyle's statement that Hoeper may have been armed implies the assertion of some fact which led him to conclude that Hoeper was armed. But the only fact in Doyle's possession was Hoeper's status as an FFDO pilot and there is no indication in the record that Doyle believed an FFDO pilot would be more likely than any other passenger to sneak a firearm through security. The tenor of the statement therefore suggests much more than FFDO status; the statement implies, for example, that Doyle knew that someone had seen Hoeper with his weapon or that Hoeper had told someone he had his weapon. Doyle's statement that Hoeper may have been armed was therefore made with reckless disregard of its truth or falsity.
€386 Furthermore, the overall implication of Doyle's statements is that he believed that Hoeper was so unstable that he might pose a threat to the crew and passengers of the airplane on which he was scheduled to fly back to Denver. We find, based on our review of the record evidence, that Doyle's actions belie the claim that he believed Hoe-per to be mentally unstable. When Doyle first heard about the confrontation at the fourth test, he booked Hoeper on the flight back to Denver and had another employee drive Hoeper to the airport. If Doyle truly believed Hoeper posed a threat to employees of Air Wisconsin, he would not have directed an employee to drive Hoeper to the airport. Also, if Doyle believed that Hoeper posed a threat to the crew and passengers of the flight, he could have instructed Hoeper to return to his hotel room for the evening and booked him a flight only when his mental state improved. In addition, Hoeper spent over two hours at the airport waiting for his flight without incident before Doyle finally called TSA. We therefore conclude that, at a minimum, Doyle entertained serious doubts as to the truth of the statement's implication that Hoeper was so unstable that he might pose a threat to aircraft or passenger safety. We emphasize that our conclusion does not require Doyle to be sure that Hoeper actualty posed a threat. Rather, our review of the record evidence leads us to conclude that Doyle did not believe Hoeper to be so unstable that he might pose such a threat.
T 37 Moreover, Doyle did not document his prior confrontation with Hoeper, which occurred at the second failed test, until after the incident at issue here. Further, the evidence shows that Doyle initially documented Hoeper as a threat only to himself, but later changed his notes to include Hoeper as a threat to others. We draw from these facts the conclusion that Doyle thought he needed additional support to justify the statement that he believed Hoeper to be mentally unstable. We therefore hold that Doyle entertained serious doubt that Hoeper was mentally unstable.
138 We recognize that important policy considerations underlie the grant of immunity contained in the ATSA. Specifically, evidence in the record indicates that the TSA instructs airlines to report "suspicious transactions" even if they are not sure that a true threat exists. That is, the TSA is the proper authority to assess potential security threats in air travel and early, tentative information from airlines is vital to this task.
III Actual Malice
40 Having determined as a matter of law that Air Wisconsin is not entitled to immunity under the ATSA, we also must address the other issues upon which we granted cer-tiorari that Air Wisconsin contends require reversal of the jury's verdict. We granted certiorari to review the court of appeals' determination that a de novo review of the record demonstrated clear and convincing evidence of actual malice pursuant to New York Times,
{41 Because First Amendment constitutional protections apply, where a private plaintiff brings a defamation suit based on statements involving a matter of "public concern," the plaintiff must demonstrate actual malice to recover presumed or punitive damages. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
142 As discussed above, a finding of actual malice is a finding that a speaker published a statement "with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times,
[ 43 The question of whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law. Harte-Hanks,
944 Under our de novo review of ATSA immunity above, we concluded that Air Wisconsin made statements to the TSA with reckless disregard of their truth or falsity. For the same reasons, we also conclude that our independent review of the record reveals clear and convincing evidence to support a finding that Air Wisconsin made the statements with reckless disregard as to their truth or falsity. Accordingly, we hold that no First Amendment protections bar Hoeper's recovery of presumed or punitive damages in this case.
IV. Opinion
45 Air Wisconsin contends that its statements were not actionable under the First
946 In al cases raising First Amendment issues, appellate courts must make an independent examination of the record to ensure that the judgment "does not constitute a forbidden intrusion on the field of free expression." Milkovich v. Lorain Journal Co.,
147 The United States Supreme Court has disavowed the creation of an "artificial dichotomy between 'opinion' and fact." Id. at 19,
148 Even a statement of bare opinion is actionable where it implies an assertion of objective fact. See id. at 21,
149 Also, where a speaker states the facts upon which he bases his opinion, but those facts are incorrect or his assessment of them is erroneous, the statement may still imply a false assertion of fact. Id.
150 In this case, intending to report a suspicious transaction relevant to a threat to aircraft or passenger safety, Doyle told TSA that Air Wisconsin officials "were concerned about [Hoeper's]l mental stability." Even if, as Air Wisconsin contends, this statement is one of opinion, it implies knowledge of facts which lead to the conclusion that Hoeper was so mentally unstable that he might constitute a threat to others on his flight. These facts are thus provable as false and the statement is actionable.
151 Also, Doyle told TSA that Hoe-per was an "[u)nstable pilot in FFDO [who] was terminated today." It appears that Doyle's statement that Hoeper was terminated that day was a fact upon which he based his conclusion that Hoeper was unstable. But that fact was incorrect because although Hoeper knew he would likely lose his job after failing the fourth test, he had not been terminated by the time Doyle called TSA. The statement thus implies a false assertion of fact.
152 We therefore conclude that the statements are provable as false and are thus not protected under the First Amendment as opinion.
V. Substantially True
158 We determined above that Air Wisconsin is not immune under the ATSA and therefore the trial court properly submitted the case to the jury. The jury was thus correctly charged with determining the elements of the defamation claim, including whether the statements were false. Air Wisconsin contends that its statements were substantially true and therefore we must reverse the jury's verdict in favor of Hoeper. We disagree.
154 Under Virginia law, the jury decides whether a statement was true or false, and we limit our review to whether sufficient evidence supports the jury's determination. Jordan v. Kollman,
T56 This defamation claim, however, does not rely upon "slight inaccuracies." Rather, the crux of the defamatory statements was that Hoeper was so mentally unstable that he might constitute a threat to aircraft and passenger safety. The record reveals sufficient evidence to support the jury's determination that Hoeper was not mentally unstable. Specifically, the record includes evidence that, although Hoeper lost his temper and "blew up" at one test administrator, Hoeper did not exhibit any other irrational behavior, and no other person who interacted with Hoeper after the confrontation believed Hoe-per to be mentally unstable or believed Hoe-per to pose a threat to others at the testing center or the airport. This evidence is substantial and sufficient to support the jury's determination and we therefore will not disturb its verdict.
VI. Conclusion
T 57 Immunity under the ATSA is a question of law for the trial court to decide before trial. If the issue turns upon disputed facts, then the court may hold an evidentiary hearing and make findings of fact prior to determining immunity. Although the trial court in this case erred by submitting the immunity question to the jury, the error is harmless because we conclude Air Wisconsin is not entitled to immunity. In addition, clear and convincing evidence supports a finding of actual malice, Air Wisconsin's statements were not protected as opinion, and the evidence is sufficient to support the jury's determination that the statements were false. Accordingly, we affirm the judgment of the court of appeals.
Notes
. As discussed below, after Hoeper's fourth failed test, Doyle finally made notes of this confrontation, stating that Hoeper's actions after this second test caused Doyle to fear for his own safety and that of others at the testing facility.
. The parties agree that Air Wisconsin is legally responsible for Doyle's statements.
. We recognize that the common method for raising the issue of immunity from suit is to file a motion to dismiss pursuant to C.R.C.P. 12(b)(1). See Moody v. Ungerer,
. We granted certiorari on the following issues:
1. Whether the court of appeals erred in finding that the trial court properly submitted the issue of Air Wisconsin's qualified immunity under the Aviation Transportation Security Act to the jury under Colorado law where federal courts generally require resolution of qualified immunity as a matter of law early in the proceedings.
Whether the court of appeals properly found that a de novo review of the record demonstrated clear and convincing evidence of actual malice.
._ Whether the court of appeals erred in finding that Air Wisconsin's statements were not substantially true and not non-actionable statements of opinion.
. In making this determination, we give no weight to the jury's finding of any fact.
. In our determination of immunity under the ATSA, we need not, and therefore do not, decide whether the statements were true or false. Rather, we conclude that Air Wisconsin made the statements with reckless disregard as to their truth or falsity. Because we conclude that Air Wisconsin is not immune under the ATSA, the trial court properly submitted the case to the jury. Accordingly, the jury was entitled to determine the elements of the defamation claim, including whether the statements were false. We review that determination below in section V.
. The Supreme Court left open the question of whether this analysis applies to statements made by non-media defendants. Milkovich,
Concurrence in Part
concurring in part and dissenting in part.
T58 Today the majority upholds a $1.4 million defamation award
€59 The ATSA provides that any airline "shall not be civilly lable" under the law of any state for 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 the TSA. 49 U.S.C. § 44941(a). This immunity is lost only if the disclosure is made with "actual knowledge that the disclosure was false, inaceu-rate, or misleading," or made with "reckless disregard" as to the truth or falsity of the disclosure. Id. § 44941(b). This exception to immunity encompasses the standards articulated in New York Times v. Sullivan,
T60 The jury verdict in this case states that Air Wisconsin made the following statements to the TSA:
(a) [Hoeper] was an FFDO who may be armed. He was traveling from [Dulles to Denver] later that day and we were concerned about his mental stability and the whereabouts of his firearm.
(b) Unstable pilot in FFDO program was terminated today.
These statements were true in substance.
T61 Beginning with the statements in paragraph (a), it was true that Air Wisconsin "Iwas] concerned about [Hoeper'sl mental stability and the whereabouts of his firearm." (emphasis added). Air Wisconsin employees met for one and one-half hours to discuss Hoeper's angry outburst after the failed proficiency-test a test Hoeper knew he had to pass or face imminent termination. See maj. op. at 134. The employees discussed the fact that Hoeper was an FFDO, making it possible that he could be carrying a firearm on board with him on his return flight home. They also discussed two incidents involving employees from other air carriers: one in which the terminated employee boarded a plane with a firearm, shot the pilots, and caused the plane to crash, killing all on board; and the other in which an employee facing termination boarded a plane intending to crash it into the company headquarters. After these discussions, the Air Wisconsin employees concluded that they had an obligation under federal aviation protocols to report their concerns to the TSA. Because the statements Air Wisconsin made to the TSA were true-the employees were in fact concerned about the risk that Hoeper might pose to airline safety for the stated reasons-they were not actionable under New York Times and, accordingly, would fall within ATSA immunity.
162 The statement in paragraph (b) was also true. The record makes clear that this statement was the subject line of an email written by a TSA operator summarizing Air Wisconsin's call to the TSA.
T63 During the proficiency check (which occurred in a flight simulator), Hoeper ran the aircraft out of fuel, flamed out the engines, and nearly crashed. When the train
After the simulation ended, Hoeper was standing in the lobby acting in an unprofessional manner, talking in a raised voice, and using profanity. When the flight instructor and another Air Wisconsin employee exited the building, Hoeper followed them to the parking lot and yelled at the instructor. Later, when Hoeper called the training center, he was described as "not exactly calm." It is reasonable to conclude from these events that Hoeper was unstable. Masson v. New Yorker Magazine, Inc.,
T 65 Similarly, the statement in paragraph (b) that Hoeper "was terminated today" was the TSA's, not Air Wisconsin's, as the majority mistakenly suggests. Maj. op. at 151. But even if Air Wisconsin stated that Hoeper had been terminated, the statement would have been substantially true. As noted above, the Last Chance Agreement provided that Hoeper's continued employment was dependent upon him passing the proficiency test-a test he had failed on three previous occasions. During the test, he stopped the simulator after nearly crashing, said he would "call legal," left the facility, and headed to the airport for a flight home to Denver. Everyone knew-Hoeper included-that he had just failed to pass the test upon which his continued employment depended. Of course, official notification of his termination did not come until the following day, as the majority notes. Id. But official notification was just a formality. Hoeper himself admitted that he expected to be terminated, because, having left the facility without passing the test, he could do nothing to prolong his employment. His employment had, in effect, been terminated. Air Wisconsin's statement was therefore substantially true.
T66 The majority acknowledges that the airline acted properly in making the report to the TSA, but concludes that the report fell outside of ATSA immunity because the airline's statements "overstated ... events to such a degree that they were made with reckless disregard of their truth or falsity." Maj. op. at 132. The majority then offers what would have been, in its view, the proper wording of the report to the TSA:
Air Wisconsin would likely be immune under the ATSA if [it] had reported that Hoeper was an Air Wisconsin employee, that he knew he would be terminated soon, that he had acted irrationally at the training three hours earlier and "blew up" at the test administrators, and that he was an FFDO pilot.
Id. at I 89.
T 67 The majority, in my view, draws hairsplitting distinctions that make no difference to the analysis. It would have made no difference, for example, had the airline reported, as the majority would have it, that Hoeper "knew he would be terminated soon," instead of describing him as terminated. As discussed above, the only thing left with regard to Hoeper's termination was formal notification-and everyone, including Hoeper, knew that was coming. Similarly, there is no difference of any consequence between stating "[Hoeperl had acted irrationally at the training three hours earlier and 'blew up' at the test administrators," as the majority would have it, and stating "concerns" about his "mental stability." As chronicled above, Hoeper's "irrational[ |" behavior is precisely what caused the airline to have concerns about his mental stability. And, in fact, the airline did convey the underlying facts to the TSA concerning Hoeper's behavior during the training session.
168 The majority is able to find that Air Wisconsin's deviations from the script were substantial only by reading "implications" into the airline's statements that simply are not there. For example, the majority thinks the statement that Hoeper "['was an FFDO who may be armed'] implies the assertion of some fact which led [the airline] to conclude that Hoeper was armed.... The tenor of the statement ... suggests that someone had seen Hoeper with his weapon or that Hoeper had told someone he had his weapon"-an implication that, in its view, was untrue. Maj. op. at 135. The "implication" that the majority draws, however, is nowhere to be found in the statement itself. Instead, the obvious "assertion of some fact which led [the airline] to conclude that Hoeper was [possibly] armed" was the fact that was actually conveyed to the TSA-namely, that Hoeper, as an FFDO, had access to a TSA-issued weapon. Maj. op. at 12. It is as if the majority tosses up the overblown "implication" just to have something to swat down as false.
T 69 Similarly, the majority reads into the report an "implication" that "Hoeper was so unstable that he might pose a threat to the crew and passengers"-an implication that, again in its view, was false. Id. at 186; see also id. at 1 56 ("[T}he erux of the defamatory statements was that Hoeper was so mentally unstable that he might constitute a threat to aircraft and passenger safety. The record reveals sufficient evidence to support that jury's determination that Hoeper was not mentally unstable."); id. at 150 (rejecting Air Wisconsin's argument that the statement was one of opinion, on the ground that the statement "implies knowledge of facts
which lead to the conclusion that Hoeper was so mentally unstable that he might constitute a threat to others"); Hoeper v. Air Wisconsin Airlines Corp.,
170 At bottom, the majority's reasoning threatens to eviscerate ATSA immunity and undermine the federal system for reporting possible threats to airline safety to the TSA. The federal reporting system rests on the assumption that airlines should report possible threats to airline safety to the TSA even when the report is based on tentative information and evolving cireumstances. The text of the ATSA itself makes clear there is immunity for reporting a "suspicious transaction relevant to a possible violation of law or regulation, relating to air piracy, a threat to aircraft or passenger safety, or terrorism." 49 U.S.C. § 4494l(a) (emphasis added). Moreover, the TSA reporting protocol affirms the tentative nature of the information contained in an airline's report. Prior to the events giving rise to this case, the TSA issued a security directive
T 71 The majority gives assurances that its "conclusion does not require [the airline] to be sure that Hoeper actually posed a threat." Maj. op. at $36. But its reasoning belies this assertion, as it repeatedly cites grounds for its decision that are inconsistent with airline safety protocols. For example, it faults Air Wisconsin for making the report when it "could not form an opinion as to whether Hoeper was mentally unstable." Maj. op. at T 33. It also faults Air Wisconsin for failing to investigate the matter sufficiently, id. at 16 (noting that Air Wisconsin "never sought nor received any additional information about the confrontation from others who were at the test center that day or about Hoeper's demeanor after the confrontation"); id. at 17 (Air Wisconsin "never sought nor received any additional information about whether Hoeper actually brought his firearm to Virginia"); id. at 183 (Air Wisconsin made a report "[blased on [ ] minimal facts"), and for not taking additional action to prevent Hoeper from boarding the flight. See id. at 136 (noting that, had Air Wisconsin "truly believed" Hoeper was a threat, it would not have booked him on a flight back to Denver and had an employee drive him to the airport); id. at 1 86 (had Air Wisconsin believed Hoeper was a threat, it could have "instructed [him] to return to his hotel room for the evening and booked him a flight only when his mental state improved"). Finally, the majority stresses that Hoeper was not actually a threat. Id. at 186 (Hoe-per "spent over two hours at the airport waiting for his flight without incident"); id. at T 56 (noting that "although Hoeper lost his temper and 'blew up' at one test administrator, [he] did not exhibit any other irrational behavior"); id. ("the record reveals sufficient evidence to support the jury's determination that Hoeper was not mentally unstable"). Under the federal safety protocols, however, none of this is relevant. The majority's concerns fall within the purview of the TSA's investigative authority, not within Air Wisconsin's responsibility. Air Wisconsin reported truthfully that it had concerns about Hoeper given his angry outburst, impending termination, and possible possession of a firearm. -Under these circumstances, ATSA immunity plainly attaches.
T72 The fundamental error committed by the majority is that it ignores the overall context in which the report in this case was made. It is easy for an appellate court to write a seript for what Air Wisconsin should have said to the TSA after having had the benefit of hours of trial testimony and ample time for appellate review and reflection. But this is exactly the sort of approach the U.S. Supreme Court has rejected. Most recently, the Court summarily reversed a federal appellate decision that had reversed a district court's grant of qualified immunity to suit under 42 U.S.C. § 1988. See Ryburn v. Huff, -- U.S. --,
T73 Finally, the majority makes a significant procedural error in deferring to the jury
174 It may be tempting to dismiss this case as an outlier. Indeed, the case before us appears to be the first reported case rejecting immunity in the ATSA's ten-year history. But a $1.4 million verdiet is not easy to dismiss, nor is the majority's troubling rationale, which I fear may threaten to undermine the federal system for reporting flight risks,. The majority recognizes that the entire point of immunity under the ATSA is to "encourage [private air] carriers to take action on issues of public importance, such as avoiding air piracy and other threats to national security, without fear of consequences." Maj. op. at 125. Unfortunately, the majority appears to forget this statement in analyzing whether immunity would apply in this instance. I therefore respectfully dissent from all but section II.A. and B. of its opinion.
. The award consists of $849,625 in presumed damages, $350,000 in punitive damages (reduced from $391,875 in accordance with Virginia law), and $222,123.09 in costs.
. The majority concludes that whether the statements were true is not part of the ATSA immunity analysis to be determined by the court; instead, the court (and here, the majority) need only decide whether the statements were made with reckless disregard to whether they were false-and, if so, immunity is lost and the case is to be submitted to the jury. Maj. op. at 130 n.6. To put it differently, the majority believes that ATSA immunity is lost when a statement is made recklessly even though it may be true.
In my view, the majority misinterprets the New York Times standard. The Supreme Court has held that although the standard-namely, that a statement must be made "with knowledge that it was false or with reckless disregard of whether it was false or not"-speaks in terms of "fault," rather than "falsity," it requires the plaintiff to show falsity of the statement. Hepps,
. The subject line and "Quick Summary" section of the TSA email stated: "Unstable pilot in FFDO program was terminated today," which is identical to the language in paragraph (b) of the verdict form.
. The email written by the TSA operator stated that '"[Hoeper] has been very upset and angry
. The security directive is classified. Its general contours were described at trial by Thomas Blank, who, at the time of the incident, was a high ranking official in the TSA. Blank also testified about the evolution of airline security since 9/11.
. There is a split in the federal circuit courts with regard to whether federal qualified immunity is a question of law for the court. The majority of circuits have held that it is. See Curley v. Klem,
. No deference should be paid to any portion of the jury's liability determination given that it was permitted to find liability on standards below those articulated in New York Times. For example, instruction 9 applies the preponderance of the evidence standard instead of the more exacting "clear and convincing" standard required by New York Times.
. Because I would find that the statements made by Air Wisconsin were substantially true, I would find that they could not have been made with