Supreme Court Update: Burrage v. United States (12-7515), Air Wisconsin Airlines Corp. v. Hoeper (12-315) and Order List

February 3, 2014 Supreme Court Update

Greetings, Court fans!

We have two new summaries for you in this edition, with two more to come shortly. First up is Burrage v. United States (12-7515), which held that a drug dealer who supplied only one of many drugs to a drug user who ultimately dies or is seriously injured may only receive an enhanced sentence if the drug he supplied was a but-for cause of the death or injury. And after that will come Air Wisconsin Airlines Corp. v. Hoeper (12-315), in which the Court held that airlines are entitled to statutory immunity for reporting safety threats to the TSA unless those reports are materially false.

When Gerardo Parra's lead-off home run for the visiting Diamondbacks proved the difference in a 1-0 victory over the Marlins last season, it was fair to say that the win "resulted from" Parra's solo shot. But the Red Sox's 13-1 victory in Game One of the 2007 World Series hardly "resulted from" Dustin Pedroia's lead-off home run alone. So explained the Supreme Court – by analogy, at least – in Burrage v. United States (12-7515), which addressed whether a defendant charged with distributing heroin can be subjected to a 20-year mandatory minimum sentence when the heroin he sold was a "contributing cause"—not a but-for cause—of a user's death.

Marcus Burrage sold one gram of heroin to Joshua Banka the day before Banka, a long-time drug user, died at the end of "an extended drug binge." Banka had heroin in his system, along with codeine, alprazolam, clonazepam and oxycodone. Burrage's indictment for distribution of a Schedule I substance charged that Banka's death "resulted from the use of" the heroin that Burrage sold him, thereby triggering the "death results" penalty provision of the Controlled Substances Act of 1986, which imposes a 20-year mandatory minimum sentence on a defendant who unlawfully distributes a Schedule I or II drug, when "death or serious bodily injury results from the use of such substance." 18 U.S.C. § 841(b)(1)(C). Though toxicologists who testified at trial could not say whether Banka would have lived had he not taken the heroin, the district judge instructed the jury that the Government need only prove that the heroin was "a contributing cause" of Banka's death, and the jury so found. Burrage was sentenced to the 20-year minimum. (Without the "death results" enhancement, Burrage could have been sentenced to as little as five years.) On appeal, Burrage argued that the "death results" enhancement should not apply unless the distributed drug was a "but for" cause of the user's death, not merely a "contributing cause," as the district court had instructed. The Eighth Circuit rejected this argument, citing prior circuit precedent, but the Supreme Court, in a unanimous decision, reversed.

In his opinion for the Court, Justice Scalia noted that Congress had not defined the phrase "results from" in the Controlled Substances Act, so the Court would apply its "ordinary meaning." To arrive at that meaning, Justice Scalia invoked the New Shorter Oxford English Dictionary, the Model Penal Code, LaFave's Criminal Law, the Court's recent construction of similar causation language in antidiscrimination laws, and America's favorite pastime, each of which confirms the common understanding that an effect "results from" a cause if it would not have occurred in the absence of – or but for – the cause. This is so even when other factors also contribute to the effect, so long as those other factors wouldn't have resulted in the same effect on their own. So, while strong pitching and defense, along with a host of other factors, surely contributed to the Diamondbacks' 1-0 victory last May none of those factors would have resulted in the victory but for the Parra's lead-off home run. "In sum," Scalia wrote, quoting University of Texas Southwestern Medical Center v. Nassar (2013), a Title VII retaliation case from last term, "it is one of the traditional background principles ‘against which Congress legislate[s]' that a phrase such as ‘results from' imposes a requirement of but-for causation." Because the Government conceded that there was no evidence that Banka, the drug user, would have lived but for his heroin use, the Court reversed Burrage's conviction on the "death results" count.

Though all Justices agreed on the result, not everyone signed onto Justice Scalia's opinion entirely. Justice Alito opted out of a section addressing the Government's policy concerns, where Scalia noted that the Government hasn't had difficulty proving but-for causation in other "death results" cases and that, in any case, an unadorned conviction for distribution of a Schedule I or II drug still carries a weighty potential sentence. Justices Ginsburg and Sotomayor joined only in the result, objecting to the opinion's reliance on Nassar and other cases addressing antidiscrimination laws. As Justice Ginsburg explained in a brief concurrence, she continues to believe that the phrase "because of" in the antidiscrimination context does not mean "solely because of," but agrees that, under the rule of lenity, the similar phrase "results from" in the Controlled Substances Act should be given the meaning that favors the defendant.

Left for another day is the question of proximate cause—whether, even if a drug is a but-for cause of a user's death, a defendant may be subjected to the "death results" mandatory minimum if the user's death was not foreseeable at the time the drug was sold. The Court granted certiorari on that question but had no need to reach it, since the lead-off question proved dispositive.

Our second case should be a warning to airline employees (and travelers): an airline can recklessly tell the Transportation Security Administration ("TSA") that you may be wielding a gun and are mentally unstable—even if you are not—as long as the "gist" of the statement is true. In Air Wisconsin Airlines Corp. v. Hoeper (12-315), the Court decided that an airline was immune from a defamation claim based on the the Aviation and Transportation Security Act ("ATSA"), 49 U.S.C. § 44901, because the statements it made to the TSA about a soon-to-be fired employee were not materially false.

William Hoeper was a Denver-based pilot for Air Wisconsin. By 2004, the airline had stopped operating flights out of Denver on any type of aircraft for which Hoeper was certified. After failing a new certification test three times, Hoeper caused a simulator plane's engines to "flame out" on his fourth and final chance to pass. Both parties understood that Hoeper would lose his job due to the failed test. Hoeper "blew up," throwing his headset and yelling profanities at the instructor before leaving the Virginia test site to catch a flight back to Denver.

After Hoeper left, Air Wisconsin executives remembered that Hoeper was a Federal Flight Deck Officer ("FFDO") who, by statute, was permitted to carry a gun on airplanes. Although Hoeper was not expected to carry his gun on this trip, other FFDOs previously had failed to abide by the policy. The executives also discussed prior incidents where disgruntled employees had lashed out on airplanes. Pulling these pieces together, an Air Wisconsin employee called the TSA and reported that (1) Hoeper "was a FFDO who may be armed" and that the airline was "concerned about his mental stability and the whereabouts of his firearm" and (2) that an "[u]nstable pilot in the FFDO program was terminated today." The TSA pulled Hoeper off the Denver-bound plane, searched and questioned him, and ultimately permitted him to take a later flight to Denver. Air Wisconsin fired Hoeper the next day.

Hoeper sued for defamation, among other things. The airline claimed immunity under the ATSA, which gives airlines immunity against civil liability for reporting suspicious behavior. The immunity does not attach, however, to a statement made with actual knowledge of its falsity or with reckless disregard to the truth or falsity of the disclosure. The state trial court submitted the issue of immunity to the jury, instructing jurors that the airline could be liable for false statements. The jury returned a verdict for Hoeper and the Colorado Court of Appeals affirmed. The Colorado Supreme Court held that immunity was an issue of law, but held that the error was harmless because Air Wisconsin was not entitled to immunity because it had overstated events to such a degree that they were made with reckless disregard to the truth or falsity.

In an opinion authored by Justice Sotomayor and joined by the Chief and Justices Kennedy, Ginsburg, Breyer, and Alito, the Court reversed, holding that the ATSA requires proof of material falsity to defeat immunity. Congress patterned the immunity standard in the ATSA after the actual malice standard set forth in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), which required proof of material falsity. Under the case law fleshing out that standard, minor inaccuracies, "do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge be justified.'" Congress's use of a term of art implied that it understood the "cluster of ideas" attached to it, including the need to prove material falsity rather than simply reckless disregard for the truth. The Court also noted that the material falsity standard aligned with the ATSA's purpose. The Act shifted the responsibility for assessing and investigating possible threats from airlines to the TSA. The ATSA's immunity provision encouraged airline employees to report suspicious activities. The Court found that "[i]t would defeat this purpose to deny immunity for substantially true reports, on the theory that the person making the report had not yet gathered enough information to be certain of its truth." In fact, the Court noted, requiring such investigation would flip the burden of investigation back to the airlines.

The Court also held that the Colorado Supreme Court's analysis of falsity under a sufficiency of the evidence standard did not suffice to require affirmance. The extent of the immunity determination is a question of law to be reviewed de novo; therefore, a deferential review of a jury finding is an inadequate substitute. The jury, moreover, did not find that any of the falsehoods were material, as the standard requires.

Finally, the Court held that Air Wisconsin's statements—as a matter of law—were not materially false. The Court evaluated whether there was a substantial likelihood that a reasonable security officer would consider the omitted or misrepresented fact to be material in determining a response to the supposed threat. The Court found the statement that Hoeper "was a FFDO who may be armed" was literally true. Even though the statement may have been misleading, a reasonable TSA officer would have investigated simply because Hoeper was a FFDO who was upset about losing his job. The statement that Hoeper "was terminated today" was false but it was not material. No TSA officer would differentiate between someone who knew they would be fired imminently and someone who had just been fired. The statements that Hoeper was "unstable" would not be material to the TSA because there was little difference between the threat posed by an armed, disgruntled employee and a mentally unstable person.

Justice Scalia, joined by Justices Thomas and Kagan, dissented in part. Justice Scalia agreed that the ATSA incorporated a material falsity standard. However, he believed that the Court should not have decided that the statements were not materially false as a matter of law. Justice Scalia noted that the Court's role is to determine whether "a reasonable jury could find a material difference between" the defendant's statement and the truth. On the factual record before the Court, Justice Scalia did not see how the Court could make such a determination. He noted that a reasonable jury could find that Hoeper did nothing more than engage in a brief, run-of-the mill display of anger that did not make him a potential source of violence. There is a difference, Justice Scalia noted, between a person displaying anger and a person who is mentally unstable. Therefore, he would have remanded to preserve the jury's role.

In other news, the Court has granted cert in the following three cases:

Riley v. California (13-132), which asks "[w]hether evidence admitted at petitioner's trial was obtained in a search of petitioner's cell phone that violated petitioner's Fourth Amendment rights."

United States v. Wurie (13-212), which asks "[w]hether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested."

And Lane v. Franks (13-483), which asks "(1) [i]s the government categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee's ordinary job responsibilities? [and] (2) [d]oes qualified immunity preclude a claim for damages in such an action?"

The Court has also invited the SG to weigh in on the petition in Alabama Dept. of Revenue v. CSX Transportation, Inc. (13-553), which would ask "[w]hether a State ‘discriminates against a rail carrier' in violation of 49 U.S.C. §11501(b)(4) when the State generally requires commercial and industrial businesses, including rail carriers, to pay a sales-and-use tax but grants exemptions from the tax to the railroads' competitors."

We'll be back soon with more decisions.

Kim, Jenny & Julie

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400