SEVENTY-FIVE YEARS OF COVERUP

Comment -- In many ways this section of the Web site is the most important you will read. There is much else, of course, especially the Marsh Statement and GAO Consultant. Here, you're going to get a look at government and lawyers that may be hard for some to believe.

I've heard knowledgeable people say in Washington that FAA is the worst bureaucracy there. It's not hard to see why, especially when the Office of Chief Counsel dominates the agency. To understand the only way this situation can ever be remedied is to read my Lawyer-Pilots Bar Association article, "Opinion of a Member." The claim of many that government is too big is, of course, true, but only in the abstract, and to imply it can be solved by slicing budgets is naive; the real problem and solution is explained in that article.

For the most part I've tried to lay out the various steps and stages of the coverup of FAA lack of authority for license penalties in chronological order. But since some might have a hard time believing the depth and plain dishonesty of what has been going on for three-quarters of a century at FAA and predecessor agencies, I've chosen a couple of related key events to kick things off.

It is certain that these events involved likely illegal acts by government lawyers, but whether or not truly criminal, we can leave for others to decide. There are broad criminal statutes that deal with the signing of government documents that make statements known to the signer not to be true. You will see that these acts underscore the desperation of FAA-DOT lawyers to cover up something they well know has no basis in law: use of license penalties for safety violations.

(We are well aware Congress increased civil penalty limits to $10,000 per violation for operators, and in 1992 approved a hearing program for civil penalties for individual airmen at the NTSB. It also increased the base amount of fine that was entitled to a jury trial from $20 to any that exceeded $50,000. Quite a jump. That lower limit was based on the language right out of the Seventh Amendment to the Constitution which guarantees the right to jury trial in civil cases. Thus Congress was rewriting the Constitution. It also demonstrates how incompetent Congress can be in making changes to basic laws. Depriving the airman of his right to jury trial for many violations , by calling them "civil," like flying under the influence, raises the most serious constitutional questions. For an excellent summary of cases on this issue, see the Supreme Court case, United States v. Ward. None of this, however, is necessary to understanding the coverup.)

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SUMMARIES

These are summaries of major elements in the yet ongoing coverup of FAA lack of authority for license penalties. If you don't have time to read the full story now, be sure to do so later.

1994 -- FAA and DOT lawyers took advantage of a congressional directive to recodify all transportation related statutes. They rewrote basic law contained in the FA Act of 1958, which, of course, only Congress can do. Without question this was malfeasance in office, or worse. Previous codifications accurately quoted the act word for word. In the acts of 1926, 1938 and 1958, the civil penalty section has always read: "Any person" who violates "any" rule, regulation or order, "shall be" subject to a civil penalty, not to exceed a certain amount. The lawyers rewrote this to become: "A" person "is" subject to, etc., completely changing the meaning. The right to "demand" jury trial also disappeared.

1962 -- This isn't the first time this tactic has been employed. FAA lawyers decided to recodify the rules carried over from the CAA in 1958. They likewise changed the civil penalty rule to read, "a person is subject to," etc., and failed to mention right to jury trial.

1926 -- Commerce Dept. officials laid down a rule that said in plain-language, commit a violation and be subject to suspension or revocation. This is what started the illegal system of license penalties. Rather than put this in their "Penalties" chapter, where the conflict with civil penalties would have been apparent, they kept it separate and mixed it in with some non-controversial matters.

1939 -- Just before passage, someone slipped into the new section 609 of the Civil Aeronautics Act of 1938, which added no new powers to those of 1926, a clause that in obtuse language made it clear revocation could not be used as a penalty, but only if the airman had shown he couldn't qualify at that time for the certificate or rating. Faced with having to ask the new Civil Aeronautics Board to change the rule (so it applied only to suspensions), which was already in the new Code of Federal Regulations, the former Commerce Dept. aviation bureaucracy the Board inherited, could not risk exposure of their lack of authority. So they did something that had to be criminal malfeasance. Without seeking Board approval, and controlling the flow of paper to the Federal Register, they stripped from the 1940 rules they were preparing, any language connecting violations with certificate action. This is why, since 1940, no such rule can be found in the CFR.

1968 -- The new Freedom of Information Act required certain agency material like the lawyers' own enforcement manual be made available for public inspection. FAA lawyers decided they would not do that because the lawyer in charge was worried some smart attorney might get ahold of it and use against the FAA in a trial. When faced with an FOIA lawsuit to force it to make the manual available the agency quickly capitulated.

1980 -- During a GAO interview an FAA regional counsel was asked why the agency did not have a booklet that explains to pilots how the enforcement system works, especially how easy it is to go to an NTSB hearing since the law judge will come to your city and there are no costs. He replied: "If we told airmen how easy it is to go trial at NTSB we'd be swamped with trials." Asked if the Letter of Investigation, which does not warn the pilot anything he says in it can be used against him in the trial, the same lawyer said: "If we didn't get that letter we wouldn't be able to prove half our cases."

1980 -- While a consultant to GAO I prepared a detailed list of questions about the enforcement program for the FAA chief counsel to answer. He never responded, nor did the deputy chief counsel and his cohorts when they came to a meeting with myself and GAO officials to discuss the program. (See GAO Consultant.)

Rule of Law by osmosis -- At that meeting, the deputy chief counsel, when asked why the agency had no rule concerning license penalties, stated: "Oh, everybody knows how the system works, anyway."

A Justice Department lawyer when asked the same question said: "Oh, I knew by my second flying lesson I could lose my license for a violation."

John Marsh, in his sworn statement, admitted there's neither statute nor rule a pilot can read that tells him that. Asked how the pilot could find out: "Just common sense, I guess, Larry." (See Marsh Statement.)

1980 -- In an interview with the Assistant General Counsel of the DOT for Regulations and Enforcement, after he heard an explanation of why it was so certain Congress never authorized license penalties, he tacitly admitted the truth of this by not disputing it. He immediately started to talk about an aircraft accident, the clear implication being that the end justifies the means.

Capitulation to avoid adverse legal precedents -- Case precedent has held that as a matter of due process the emergency-revoked airman or operator should have an immediate hearing in which he can challenge the FAA claim that an emergency exists. I used a petition for an extraordinary writ to ask one court of appeals to appoint a master to hold such a hearing. Within two hours of its being filed FAA lawyers dropped the case. In another, that involved the emergency revocation of six air-taxi pilots who flew for one company, I helped their lawyer use the same technique. With the threat hanging over their heads that a master might be appointed, and asked by the appeals court to supply an affidavit explaining why there was an emergency, FAA lawyers immediately withdrew their claim of emergency. With a minor exception, all the alleged violations were more than a year old. Typical abuse of the emergency power.

1989 -- Avoid depositions at all cost -- In one case I goaded FAA lawyers into filing a civil penalty lawsuit by instructing an air-taxi client to continue to operate in spite of the emergency order of revocation. I did that because I knew the company would otherwise be destroyed without such a tactic. There was no problem in district court with the U.S. Attorney's office setting up depositions of several FAA lawyers. Since they would rather die than have to explain under oath how their enforcement system works, they agreed to give back the air-taxi certificate for time served; the civil penalty was settled and my client was back in business. NTSB staff were shocked to hear the FAA did so, never having heard of it before.

1990 -- When a federal district judge refused to stop depositions of FAA lawyers at the start of a mandamus action, they immediately capitulated and published the detailed summary of a petition for rule making, which was the purpose of the action, rather than face questioning. The lawyers are still sitting on the petition, rather than sending it to the Administrator for denial, as is required by FAA rules. (See Petition for a Comprehensive Rule.)

1992 -- The rules of civil procedure provide for taking depositions while a case is on appeal, in order to preserve testimony. Using that rule, depositions were set up for several retired FAA lawyers, including John Marsh, in a civil rights violation action. To our surprise, the Justice Dept. said they wouldn't object. After several calls setting everything up, the Justice lawyer called and said she was now going to file an emergency motion to stop them. Turned out she'd waited to tell the FAA lawyers what she was doing. When they heard what it was, they obviously went through the roof, perfectly illustrating how deathly afraid they are of the truth. Not stupid, they realize that if it ever came out of their own mouths, it would open up a national scandal. The Justice lawyer made her usual false charge that all counsel for the plaintiff was doing was harassing FAA officials. It worked, and the depositions were canceled.

NATIONAL TRANSPORTATION SAFETY BOARD

The Board also plays a role in the coverup, although its members are not likely to realize that. The term "violation" is conspicuous by its absence from its rules for processing enforcement cases. This no doubt is due to the fact its first general counsel, in 1966, moved over from a high position in the FAA Office of General Counsel.

Chief law judge -- In one private pilot case, I moved to dismiss on grounds there's neither rule nor statute to back up license penalties. The chief law judge, rather than try to explain why this did not violate the Administrative Procedure Act, which, of course, he couldn't do, simply ruled, "Duly considered and denied," deliberately ignoring the laws and Constitution he was sworn to uphold.

Board -- In spite of the fact its members also swear to uphold the laws and constitution, the Board has held that it is none of its business if FAA has neither statute nor rule to back up license penalties.

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1994 -- Unlawful Rewrite of the Federal Aviation Act of 1958 -- Civil money fines constitute the only penalty system Congress has ever chosen for enforcement of safety violations. Period. The 1958 Act used the same language as the Civil Aeronautics Act of 1938; and in turn that act followed the language of the Air Commerce Act of 1926, which initiated federal regulation of aviation. Here's how the relevant part of the 1958 Act reads:

Civil penalties -- Section 901, 49 U.S.C. app. § 1471 (1982), reads (pertinent parts; all emphasis added):

"(a)(1) Any person who violates (A) any provision of [this Act] or . . . any rule, regulation or order issued thereunder . . . shall be subject to a civil penalty of not to exceed $1,000 for each such violation . . ."

Section 903(b), 49 U.S.C. app. § 1473(b) (1982), reads: "[e]ither party may demand trial by jury of any issue of fact, if the value in controversy exceeds $20 . . ."

Note: FAR § 1.3 - Rules of construction. § 1.3(b)(1) "'Shall" is used in an imperative sense;'" FAA lawyers ignore this and never explain why this does not apply to civil penalties.

So here's what FAA and DOT lawyers did to unlawfully rewrite the Federal Aviation Act of 1958. They took advantage of a Congressional directive to recodify all transportation law -- aviation, railroads, highways, etc. -- into a coherent grouping, and in the process unlawfully rewrote section 901.

Chapter 463--Penalties -- 49 U.S.C.A. § 46301 (a). Civil Penalties:

(a) General penalty.--(1) A person is liable to the United States Government for a civil penalty of not more that $1,000 for violating-- . . . (A long list of the various FA Act sections to which it applies follows.) Changing "any person" to "a person," plus leaving out "any rule" and "shall be subject to" completely changes the meaning. The clear mandate of section 901, supported by legislative history, has always been that the only form of penalty system Congress has ever authorized for air-safety violations is the civil money fine.

Since the point here is made so clear by the civil penalty section, there's no need to go into how the lawyers have doctored section 609 to water it down. At least they did not dare to write into it any language hinting at a connection between suspension and revocation with violations.

If the Inspector General of the Department of Transportation wants to know who engineered this unlawful rewriting of the FA Act, all he has to do is check the necessary memoranda produced to accomplish the task. Then he should ask John Cassady, longtime deputy chief counsel, and Peter Lynch, who rose to assistant chief counsel for enforcement. Either will know who it was that played fast and loose with the law.

If you have any further interest in the history of all this, then take the time to read Emperor, which you can download and print out to do that at your leisure. Here's a relevant quote from Emperor at 95:

A most interesting part of the coverup is the FAA's use of euphemisms designed to make punitive suspensions and revocations seem as if they are something else besides penalties (though just what else is unclear). One FAA lawyer volunteered, during a meeting, that: "When we suspend a man's license for a violation, that is not 'punishment,' that is a 'remedial' action." [192] He freely conceded, however, when asked, that he could have begun the same case as a civil penalty, and that of course would make it punishment; or that having started it off as a certificate action, he could shift it over to the money fine. [193] At the same time, during an informal conversation, an NTSB lawyer related that: "The Board never uses the word 'punishment,' all our actions are 'remedial.' " [194] Throwing reality to the winds, both officials were following the company line."

What kind of lawyers are these that are so naive as to believe a suspension ordered solely because the airman has been charged with a safety violation is simply a remedial sanction rather than a penalty? Describing suspensions as such, or some other euphemism, has been going on since 1926 in an effort to gloss over the fact they are nothing but alternative penalties to a civil money fine.

1962 -- What you just read was not the first time FAA lawyers rewrote the civil penalty law? Surprised? Don't be. It also happened when the Civil Aeronautics Administration (CAA) in 1958 was transmogrified into the FAA. For those who don't know the history of that, the purpose was to create an independent agency with an administrator who had the authority to make air-safety rules and issue enforcement orders. Before, it was CAB, not CAA which was a strictly administrative agency, that possessed such authority. CAB was neglecting air safety while it carried a heavy work-load with airline regulation. Moreover, Congress and the public were getting up tight about collisions between aircraft, at least three between military jet fighters and airliners, within a fairly short time period.

Lt. Gen. Elwood P. Quesada, USAF, who'd been in charge of air traffic control over England during the Second World War, and done an excellent and critical job, was made FAA administrator. So here's what happened: FAA, simply the same CAA people now with new letterhead stationery and signs on the door, decided to recodify all the CAA rules. This took place over 1961-62 with various notices in the Federal Register. The problem FAA lawyers faced was that the CAA rule,14 CFR § 408.23, Civil Penalties, correctly stated the law: "Under section 901 of the act, any person who violates any provisions of Titles . . . [such and such], shall be subject to a civil penalty . . ." What had probably been happening is that with the growth of aviation pilots dinged with a violation and given a license suspension were asking why they couldn't pay a civil money fine like the rule plainly said they could.

The lawyers' introduction in the Federal Register that explained the purpose of the recodification program proclaimed that no substantive changes would be made without following the Administrative Procedure Act. This, of course, turned out to be false. The newly recodified rule, 14 CFR § 13.15, read: "A person is subject to a civil penalty . . .," etc. And has said that ever since. (Look familiar?) Today FAA lawyers will cite the newly recodified civil penalty section of the FA Act, treating it as what Congress had enacted, knowing full well they are not telling the truth.

1926 -- One of the first things I did at GAO was to review Part 13 of the FARs, the enforcement rules. It struck me there was nothing in those rules that warned a pilot one of the ways he could be punished for a safety violation was by having his license suspended or revoked. (Don't ask me why I didn't see this in 1968 -- I don't know.)

That prompted the question of how did such penalties get started? Obviously, at some point there had to have been something in writing that the public could read. Wilson v. CAB, the touchstone case that held the government has such authority, because of vague language about public interest and air safety in section 609, was based on the 1938 Civil Aeronautics Act, but cited no rule. So it was obvious there had to have been something written in plain English at sometime for such penalties to be used. So I went up to the FAA library from the GAO office, and checked back through every rule book published since day one. Sure enough, this is what was found: "Dept. of Commerce, Air Commerce Regulations (1926) -- Sec. 74. Suspension or revocation of licenses. -- Pilot's and mechanic's licenses will be suspended or revoked for--(A) Violating any provision of the air commerce act of 1926 or these regulations. . . (F) Violating air traffic rules."

Here was the answer I sought; it was also the first step in the coverup. Not dramatic, but what the lawyers did was keep it separate from the chapter entitled "Penalties." They also included it with other subsections that appeared to have something to do with qualifications, not violations.

1939 -- Because of the plethora of New Deal agencies created in the early 1930s to deal with the worst depression this country has ever endured, and all the regulations they had to promulgate, it was realized their rules had to be published and organized for easy public access. So Congress created the Federal Register and the Code of Federal Regulations. All rules to be published in the CFR are first required to be published in the Federal Register. It was first published in 1936; the CFR was delayed and began June 1938. And thereby hangs a tale.

That delay created a trap for the Commerce aviation officials who'd been running things pretty much anyway they wanted. Any rules that were to be published in the CFR had to get to the Federal Register the year before. So those officials took section 74 and divided it into several similar rules, one for pilots, one for mechanics, and so forth. Each rule stated in plain English that if the certificate holder committed a rules violation he could have his license suspended or revoked. They were finally published as 14 CFR §§ 20.37, 20.37110, 20.46, 20.463, 21.27110 (1938).

What was the trap? While the Commerce bureaucracy was preparing these regs, Congress was involved in the legislative process that led to the Civil Aeronautics Act of 1938. That act did not pretend to add any power for the air-safety end of aviation that began in 1926, but was created to provide for the regulation and subsidization of airlines. There had been several airline crashes in the 1930s, one senator had died, which sharpened Congressional interest in this important and growing transportation system. There was concern, given the depression conditions, that airlines might short-change maintenance. So the idea was to award them specific routes where they would have no competition, and would hopefully make a profit. Subsidies were handled through guaranteed U.S. Mail contracts.

The 1938 Act created the five-member Civil Aeronautics Board. It inherited all the Commerce functions, along with its aviation bureaucracy, including the lawyers who'd prepared the license penalty rules. The trap? The 1938 Act created the notorious section 609. It didn't pretend to create any new regulatory power, but was a more complete explanation of what the Commerce people had been doing under the 1926 Act -- excepting, of course, anything that mentioned license penalties. (Since those officials no doubt played an important role in shaping the 1938 Act, that failure was a definite part of the coverup.)

Here was another major part of the coverup. How? Those Commerce officials, especially the lawyers, naturally played a key role in helping shape the 1938 Act. They had been using license penalties for violations for almost twelve years, yet they did not include that in section 609 which, as we all know, is the basis of FAA lawyers' claim of authority. But a funny thing happened on the way to the Forum, i.e, Federal Register. Those officials had submitted their license-penalty rules for the CFR before they knew what the final form of the 1938 Act would take. Some person slipped them a mickey. No one knows exactly what happened, but it probably occurred during committee markup sessions. Those occur after the legislation is pretty firm, but is a sort of last minute cleanup of language.

Someone slipped into the new section 609 a clause that said: "The Authority . . . may revoke, in whole or in part, any such certificate for any cause which, at the time of revocation, would justify the Authority in refusing to issue to the holder of such certificate a like certificate." See Emperor at 85-86. This was a convoluted way of saying that revocation could not be used as punishment, but only for true lack of qualifications. It caught the former Commerce-now-CAB officials flatfooted. Their rules on suspension and revocation for violations had been sent to the Federal Register in 1937, and were to be published in that June 1938 first edition of the Code of Federal Regulations, and there was no way they could change them. The five-member Board took office in September of that year. Now those officials faced a dilemma.

Acutely conscious of their lack of authority for license penalties, it became imperative that they eliminate those rules. In a normal, lawful situation, what they should have done, of course, was go to the Board and explain they'd been suspending and revoking for violations, but now the new 609 clause meant that they could no longer use revocation. Then ask it to amend the policy to eliminate revocations, but not suspensions. (Remember, at this time they had no case like Wilson, upholding so-called "deterrent" sanctions.) But this would have meant public hearings, and it wouldn't have taken a genius to figure out that someone like ALPA, and others, would start asking about how they got such authority in the first place. In other words, the fact those officials did not go to the new Board, is clear evidence they knew they were involved in a fraud on the public.

I knew I would find nothing about this in the CAB minutes, but to be absolutely thorough I went out to Suitland, Maryland, to the huge facility of the U.S. Archives. I was the first person ever to go back through those minutes, from day one in September 1938 to early 1941. There was nothing about license penalties, or any related subject.

Then how did those former Commerce officials handle the problem? They did something I do not hesitate to call criminal malfeasance in office. Since they controlled the day to day administrative work and flow of material that would go to the Federal Register for the 1940 CFR edition, rather than obtaining the Board's formal permission, they rewrote the rules in 1939, and in so doing sanitized them of any that so much as hinted at a connection between safety violations and suspension or revocation of a pilot or other airman certificate. No doubt they handed the Board chairman a stack of material, and he, believing he was dealing with honest, straightforward government lawyers, signed off on the transmittal letter to the Federal Register.

THIS IS WHY THERE HAS BEEN NO RULE SINCE 1940 IN THE CFR, OR ANYWHERE, THAT WARNS PILOTS, MECHANICS AND OTHER AIRMEN THEY CAN LOSE THEIR LICENSE FOR THE VIOLATION OF A SAFETY REGULATION.

If any FAA lawyer, past or present, reading this still thinks there is legitimate authority for license penalties, he or she should turn in their license to practice law. This matter is not now, nor has it ever been, what lawyers like to call, a legitimate issue about which reasonable men can differ. It is all based on fact.

1962 -- When JFK took office in 1961 there had been a lot of criticism of FAA enforcement. AOPA and others complained that the sending of a Notice of Proposed Certificate Action, followed by an official order that told you your pilot's license was suspended for, say, 60 days, was the equivalent of the Queen in Alice Adventures in Wonderland hollering, "Sentence first, verdict afterwards!" So Najeeb Halaby, FAA Administrator, appointed a small committee headed by the prominent Washington attorney Lloyd Cutler to look at the matter.

They made two recommendations: (1) FAA should create an in-house hearing program that airmen could elect to use, only after which, if found guilty of the offense, would the order be issued. He could still appeal from that to the CAB (NTSB after 1966); (2) that FAA use trained investigators for alleged violations. The hearing program was adopted, not the other.

Here's how that program fit in the coverup. The FAA lawyers put it together, with a considerable number of rules without ever putting them through the required Administrative Procedure Act public notice and comment period (NPRM). It other words, they created an entire system of in-house administrative justice but said the public had no business in helping to shape it. What they were doing, of course, was keeping it from public scrutiny until it was a fait accompli. (They did this again about 1990 with the civil penalty hearing program, so the Air Transport Association and ALPA sued and forced them to use an NPRM. Further evidence of FAA lawyers' disdain for the law.)

The FAA lawyers didn't like the program, mostly because airline pilots, who had their union paying all the legal bills, would use the FAA hearing to force the agency to disclose everything they had, in effect, use it as a free deposition process. That really ticked off FAA lawyers, since it would prevent them from using surprise testimony at the NTSB hearing. It also stalled the imposition of any suspension for a considerable time. Finally, the FAA lawyers agitated enough that they were able to persuade the Administrative Conference of the United States, a small advisory group set up to advise Congress on administrative law, to conclude the hearing was not needed. So with that support they were able to kill the program.

But here's the kicker, This time, 1970, certain there would be no great public uproar or serious opposition, the FAA lawyers did follow APA mandates and put out a proper NPRM.

The FAA hearings, with former FAA lawyers appointed the hearing officer, were a joke. You can see this by reading "The Crime Comes Last of All," a chapter from the book I worked on in 1968-70.

All of this reinforces the lesson here: FAA lawyers follow the law only when convenient, or unavoidable.

1968 -- The attitude of FAA lawyers towards airmen? Listen to this: In 1967 Congress passed the Freedom of Information Act (FOIA). Congress and the public, especially the press, were fed up with agencies doing everything possible to deny the public access to what they were doing behind closed doors. The Act was to take effect July 1, 1968. My branch chief, Norman Plummer, called a meeting of all of us in the enforcement division and announced that Nate Goodrich, FAA general counsel, had assigned him the task of deciding whether or not to make the FAA lawyers' enforcement manual, just published, available to the public. This manual was the only document that to any degree could provide the public with an idea of how enforcement worked.

I stood there with the others in Norm's cramped cubicle, listening to him discuss the problem, then make clear his decision was not to make the manual available to the public. What really caused my eyeballs to roll was when he said, "If some smart lawyer gets ahold of this manual, he can throw it back at us in a trial." So Goodrich, who apparently didn't seem to care about following the law either, went along with Plummer's decision: the manual was not made available.

The problem with this was that the FOIA specifically covered such documents and required they be made available to the public in a designated accessible room during regular office hours. When I left and was working on my book about the absurd and unfair cases I'd seen against pilots, private and airline, lawsuits were starting to be filed under the FOIA. So I decided to do the same, and in late 1968 filed suit to force the FAA to make the manual available. The agency capitulated, the manuals became available.

Years later, in July, I stopped in Toledo, Ohio, on my way west to backpack in Colorado, to attend the violation hearing for Tony Barnum, a supporter of my work. He had his witnesses ready, and it was a case he should have won, but his lawyer thought he ought to settle. I told Tony, long-time Piper Distributor for Northwest Ohio, that they'd probably agree to let him take the 30-day suspension at some convenient date as part of the deal. No FAA lawyer will tell you this, but they'll usually do it. Tony planned to take the month of October off anyway and agreed. We all repaired to a nearby coffee shop, where law judge Tom Riley, from the litigation division, who I'd casually known at FAA, told me he'd handled my FOIA case and saw immediately the FAA had to comply. So the manuals were made available. (See Emperor at 83, n. 125.)

1968 -- So you'll understand that Plummer's advice to not make the manual available was not an honest professional judgment, look at some other facts. He was editor of that manual, first of its kind. He made sure there was in it no clear statement about punitive suspensions, especially any that indicated they were used as an alternative penalty to a civil money fine.

Contrast that with the 1980 consolidated enforcement manual, edited by John E. Marsh Jr., which Administrator Langhorne Bond ordered produced with the idea it should be easily made available to the public. (In the late 1990s I asked the Scottsdale FSDO if they had one around. They couldn't find one!) Here's Marsh's honest statement in that 1980 manual:

Formal legal actions are undertaken to: (b) Impose punitive sanctions, after the act, to deter violations (e.g., certificate actions, civil penalties);

This is the first time any FAA document juxtaposed the two forms of penalty, so that it becomes clear they are alternatives. This also illustrates FAA lawyers' disregard for the law. The Supreme Court in Morton v. Ruiz, specifically stated that an agency cannot just put its policies in one of its manuals, but must publish it in accordance with APA requirements. Naturally, FAA lawyers paid no attention to it.

Keeping quiet about the manual's existence, FAA lawyers in their notice of proposed certificate action, or civil penalty letter, do not mention it, just when such knowledge might be of some benefit to him and his lawyer.

To understand the depth of this problem, we can hear it right out of the mouth of FAA regional counsel DeWitte T. Lawson Jr. While on a field trip for GAO to Los Angeles, two GAO officials based there and myself met with Lawson to have him explain to these men how enforcement works. I asked him why the FAA had never prepared a booklet that explains the system in layman's terms, especially advising them that with the NTSB hearing process there are no court costs, the law judge will come to your town for the trial, and the transcript costs you nothing.

"If we told pilots how easy it was to go to trial at NTSB," Lawson said, "we would be swamped with trials." Asked if from a philosophical standpoint (meaning due process) the airman ought to be told how enforcement works, Lawson replied, "No." Neither did he think the pilot needed to know in advance whether the sanction for a violation was going to be a suspension or a civil penalty. (See Emperor at 83 n. 128.)

Later, Lawson was asked why the pilot, in the Letter of Investigation (LOI) that asks him to explain his side of the alleged incident, wasn't told his response could be used against him in the trial. (Which would have discouraged a great many replies). Lawson replied, "If we didn't get that letter we wouldn't be able to prove half our cases." Add to this that the LOI, by formal FAA policy, after describing the incident and date it allegedly occurred, does not tell the airman what rule the FAA believes he violated! John Marsh, in his statement, conceded this would put the airman and his lawyer "behind the eight-ball."

1980 -- Towards the end of my six-month tour as a consultant to the General Accounting Office, I prepared a memorandum that asked a list of very reasonable questions about FAA enforcement. (If you have not read GAO Consultant, it is an absolute must, as is the Marsh Statement.) Under the cover letter of the director of the GAO-FAA office, it was sent to Chief Counsel Clark Onstad. For instance, it asked: "What is the FAA's statutory basis for suspending or revoking an airman's certificate as punishment for violation of a safety regulation?" "What language in either the Act or the Federal Aviation Regulations tells the airman his license is at risk for a violation of a regulation?" It asked FAA lawyers to explain the conflict with the civil penalty section of the FA Act, "shall be subject to," etc.

Onstad made no attempt to respond to the GAO letter and memorandum, thus becoming a direct participant in the coverup. He was able to get away with this, evidently, because the enforcement study had been self-generated within GAO, which sometimes happens, rather than as usual requested by a Congressional committee, representative or senator, which would have put some pressure behind it.

The Rule of Law by osmosis -- Onstad sent Deputy Chief Counsel Jonathan Howe to a meeting with myself and two GAO officials. Three other FAA lawyers came with him. One was John Cassady, then chief of the enforcement proceedings branch, later deputy chief counsel for several years. This was the meeting where I opened with the question: "Jonathan, how do you justify this important agency not having a rule that warns pilots and mechanics they can have their license suspended for the violation of a safety regulation?" His response: "Oh, everyone knows how the system works anyway."

After acknowledging in his sworn statement there was neither statute nor rule a pilot could read which would warn him of license penalties, when I then asked John Marsh how the pilot could find out, he said, "Just common sense, I guess, Larry." About 1992 Justice Department lawyer Wendy Rome, when I asked her the same question, told me, "Oh, I knew by my second flying lesson I could lose my license for a violation." Thus acknowledging she knew there was neither statute nor rule on the subject. These, folks, are your government lawyers.

1980 -- Towards the end of my GAO tour, I interviewed Neil Eisner, DOT Assistant General Counsel for Regulations and Enforcement, DOT being the FAA's so-called parent organization. I thought he'd be interested in my research that showed beyond cavil that Congress had never granted authority for license penalties, and that this and lack of any FAA rule violated the APA. So I laid it out during 45 minutes. He sat there and glared at me like an angry rattlesnake, rudest treatment I've ever experienced. When I finished, he denied nothing, then asked me,"Don't you think we ought to have such power?" "Sure," I answered, "but don't ask me, ask Congress." He immediately launched into the story of an old Lockheed Constellation, converted to a freighter, that had crashed shortly after takeoff from Miami. It was found that the pilot had ignored a 300-rpm mag drop below minimums on one engine. Since it had four engines I don't know why it crashed even if one quit, but his point in telling this was quite plain: the end justifies the means. I didn't learn until later that Eisner had moved up to his position from the same slot at FAA. Had I, I doubt I'd have bothered to talk to him. Eisner, by his failure to deny anything I'd told him, or offer some explanation for FAA authority, was just another participant in the coverup.

1985 -- Capitulation to avoid adverse legal precedents -- In 1985 when I began to see first hand the brutal abuse of FAA's emergency power by regional counsels, I tried to think of something that could be done about it. The U.S. Court of Appeals for the Ninth Circuit, had made a highly relevant ruling on the subject in Nevada Airlines, Inc. v. Bond. The FAA had shut down the commuter airline with an emergency order. In the resulting appeal to the Ninth Circuit, the court held that it was a violation of the Fifth Amendment right to due process for there not to be an immediate hearing in which the certificate holder could challenge the claim there was an emergency requiring its immediate shutdown. The court recognized that the emergency shutdown is what really destroys the operation. (Don't miss Summaries of Emergency Cases in Segment One). A highly respected U.S. District Judge, in U.S. v. Harper, in the early 1970s noted that the emergency order was the equivalent of a judicial temporary restraining order (TRO), the rules for which command that a prompt hearing be held. That case involved an airman.

The problem with the Ninth Circuit decision was that rather than hold the relevant section of the FA Act unconstitutional, it stretched the Act's language about its own jurisdiction and said it would provide the hearing. This was silly, because appeals courts are not constituted to provide such hearings, as are district courts, which are the trial courts and can issue subpoenas, bench orders, and so forth. Moreover, the Ninth Circuit didn't explain how one could go about it getting it set up.

So after watching 143 persons lose their livelihoods in the Go Group cases (FAA Abuse of Power, Segment One), I came up with the idea of asking the appeals court, using a petition for an extraordinary writ, to appoint a master, as any federal court has authority to do. The master could be a district judge, magistrate, even a private attorney, to provide the hearing and then report back to the court, which would render the final decision.

The Butler case -- Here's what happened when I first put my plan into effect. The FAA Southwest Region in Ft. Worth had issued an emergency order of revocation against Robert Butler, a pilot in Houma, Louisiana. (See his case in Summaries of Emergency Cases. The reasons why it was an utterly stupid case are explained there.) It was fortuitous that Butler was flying for a topnotch plaintiff's law firm that had about as much confidence in federal agencies as I had in the FAA. I prepared the pleadings for a petition for an extraordinary writ over the week-end, and faxed it Sunday evening to Peter Lynch. It had gone FedEx on Saturday to the Houma law firm. It asked the Fifth Circuit in New Orleans to appoint a master to hold a hearing on whether or not there was an emergency. (There was no emergency, of course, the alleged violation had occurred more than a year before and had nothing to do with pilot skills.)

The pleadings were filed Tuesday morning in New Orleans. Within two hours Peter Lynch called the senior partner of the firm in Houma, with whom I'd coordinated. Lynch offered to drop the emergency revocation case completely, provided Butler would promise not to sue the FAA. The deal was made and the matter ended. Lynch knew that if the hearing were to happen, we'd subpoena FAA inspectors, lawyers, etc., to testify, and/or take depositions, if necessary. Also the claim that the case involved an emergency was so stupid there was no doubt about the outcome. More importantly for Lynch and company, it would have set an awkward precedent that would have received a substantial amount of publicity in aviation media, if not the national press, thus spreading this potentially deadly virus so other operators and airmen would use the same strategy, and possibly even attract congressional interest.

Active Aero Charter -- This company is a freight operation out of Ypsilanti, Michigan. (Also in the Summaries.) It hauls auto parts in small jets and turbo-props. The FAA issued an emergency order suspending or revoking some six of its active pilots. The charges were based on crew-time violations discovered right here in Tucson by checking customs records on flights from Mexico when the pilots landed to clear customs, then cross-checking their logs. One of the pilots, having read an article of mine, called me. I immediately sent copies of my pleadings to the FAA-experienced lawyer, located near D.C., the company had hired. Using my pleadings, he immediately filed an emergency petition for an extraordinary writ asking the D.C. Circuit to appoint a master. At the prompt hearing on the petition, the Circuit judges asked the FAA lawyers to immediately supply affidavits as to the nature of the emergency, leaving the threat of appointing a master hanging over their head. (With one minor exception, all the crew-time charges were more than a year old.) What did John Cassady, Peter Lynch and company do? Obviously because the claim of emergency was totally fraudulent, they immediately dropped it, and the cases proceeded normally. Sic semper tyrannis.

1989-90 -- Avoid depositions at all costs: Glacier Bay Airways -- By 1988 I saw how easily Lynch and company could mislead courts of appeals with whom petitions for review of an NTSB decision upholding the FAA order would be filed. (That's just another name for an appeal, but from an administrative agency, not a regular court.) I came to realize that the only way we could ever force the truth from FAA lawyers about the total unconstitutionality of FAA license penalties and its emergency power, would be to depose them. When Glacier Bay Airways came along as a client in the fall of 1989 (see Summaries of Emergency Cases), they already had an idea from local Juneau gossip that FAA was heading for an emergency order; this concern was reinforced since Tom Westall, Alaska Flight Standards director was regularly chopping off heads. The order was served Friday evening, a typical FAA ploy to make it difficult for the victim to locate his lawyer, and the lawyer a judge for a TRO. (In fact it was in this case that I did get a TRO from a Ninth Circuit judge here in Tucson, but had to wait till Monday morning.)

I told my client to continue flying on Saturday in direct violation of the order. They understood my reasoning. So they did. Six flights. I knew the company would be a goner unless we could get to federal court and take depositions. So having them fly the next day was to provoke the FAA into going into doing just that. Lynch and company took the bait. A $60,000 civil penalty case was filed within the week in Anchorage. I was happy as a clam. Had no difficulty with the U.S. Attorney's office in setting up depositions for several FAA lawyers, active and retired. John Marsh was at the head of the list, as always, because I knew he'd tell the truth, as you can see from the Marsh Statement.

By now late January 1990, two weeks before we were to take the depositions, everything set to go, my people told me that unless they could tell their long-standing major clients they'd be flying by March, they'd be out of business, anyway, as those clients would have to line up other air-taxi companies for the upcoming summer season. So I called John Curry at Anchorage, regional counsel, and told him we'd admit to a couple of violations if the FAA would drop revocation and switch to a suspension for time served. He called Washington. Within 48 hours Lynch and company agreed to the deal. My client was back in business.

Lawyers naturally feel proud about winning a case, but this was really special. My strategy, like the extraordinary writ for a master, had worked. Dina Clayborn, a splendid public servant, for years head of the office that supported NTSB law judges, told me they had never, ever heard of the FAA restoring an emergency revoked air-taxi certificate! The civil penalty was settled for ten grand with the U.S. Attorney's office. Stiff, but better than being out of business forever.

GBA was a successful company with more than a dozen years flying over water and between mountains in some of the worst weather in the U.S., and had never had an accident. There was never an emergency, the case could have been settled fairly by civil penalty for a thousand or two dollars. Look at all the expense on the part of the government. Crazy. But Tom Westall knew all this, he just wanted to make his bones. He shut down nine little Alaska air-taxis in 16 months.

Why did Cassady, Lynch and company settle? Not hard to figure.

1990 -- The writ of mandamus -- After the success with Glacier Bay, but losing out on the opportunity to depose FAA lawyers, another one presented itself a few months later. (You can read more of this at Petition for a Comprehensive Rule, but some of it needs repeating to set the stage.) On behalf of 14 pilots, back in January 1989, I'd filed a petition proposing that the FAA adopt, through the NPRM process, a comprehensive rule that explained in detail how enforcement worked. I knew of course that they couldn't afford to do that. The petition went to the Office of Chief Counsel and its regulatory docket, filed as No. 25784. Their own rules required that with such a petition one must file a summary explaining what it was about and why it was needed. Presumably, at their option, they could publish it in the Federal Register, run it up the flag pole, so to speak, and see how many airmen saluted it.

Problem was the lawyers stalled and only when pushed by Senator John McCain did they publish, not my summary, but their own in the fall of 1989. Their notice was very short and misleading. Naturally. I knew what they were doing, of course, and after Glacier Bay saw another opportunity to obtain depositions. So I brought an action in U.S. District Court in Tucson. It asked for a writ of mandamus ordering the Administrator to publish my summary and extend public comment by 180 days.

The judge approved taking the depositions right at the start so that we could be prepared for the hearing on a preliminary injunction. When, in spite of importunities by the Justice Department, he refused to stop them, they immediately capitulated. Lynch set up a phone conference with the judge, who was in Philadelphia, and told him they would do the two things the complaint asked for. The judge then said to me, "Mr. Smith, you've won the case." Thus was defeated another opportunity to get the truth out in the open. My 54.3 column-inch summary drew almost 600 comments, without major publicity in Flying, AOPA Pilot, and Sport Aviation, which would have prompted a great deal more. Lynch and company were caught between a rock and a hard place. It was less of a threat to them to put something in the Federal Register, which Joe Airman would hardly ever read, rather than allow their depositions to be taken, which would have generated some rather interesting and unpleasant publicity in aviation media.

1989-1991 -- Bury petitions for rule making -- As noted above, in 1989, as a means to get out in the open the lack of a rule for license penalties, which would inherently lead to exposing the lack of authority, I filed a petition for the FAA to adopt a comprehensive rule that explained in detail how enforcement works. A key element of FAA lawyers' coverup, as the writ of mandamus indicates, was to bury the petition, Regulatory Docket No. 25784, in their files. This directly violated the mandate in their own rules, FAR 11.51, that requires the Office of Chief Counsel, if it is going to recommend to the Administrator the petition be denied, to prepare a memorandum explaining why and draft a letter of denial. The reason they could not forward it, was the probability the Administrator would look at it, and demand an explanation of why the agency lacked such a rule. The lawyers, of course, cannot possibly provide a straight answer to that.

When it was clear that the lawyers were going to bury the petition for ever and ever, I filed another in 1991, Regulatory Docket No. 26642. They buried that one, too. All it did was ask the agency to amend FAR 13.19 to say exactly what they claim section 609 authorizes them to do. It proposed inserting a sentence in the FAR that states precisely they may suspend or revoke an airman certificate for a safety violation.

Here we are thirteen years after the comprehensive rule was filed, and more than ten years after the FAR 13.19 amendment was proposed. If you agree this is long enough, then go to the section, Help Stop License Penalties, and send the petition and letter it suggests.

1992 -- Mace v. Skinner -- This case involved the emergency power and many other issues, so was rather complicated. It was dismissed for lack of subject matter jurisdiction. That appeared to be the law at the time. I'm proud that the Ninth Circuit reversed that and set a major precedent. It held that if the plaintiff was challenging FAA's constitutional right to issue the enforcement order, rather than the specific charges in order to sidestep the administrative process, then the district court did have subject matter jurisdiction. It was an extremely important and precedent setting decision.

While the case was pending on appeal, I took advantage of Civil Procedure rule 27(b). It provides for the perpetuation of testimony by deposition while a case is on appeal. Its purpose is to allow the litigant to preserve important testimony that might otherwise be lost during pendency of the appeal. A witness, for instance, might be in the Army and about to go overseas; a corporate executive, the same, etc. But if the potential deponent is 70 years old or more, then one does not have to justify the need; all mine were. The district judge approved my motion.

To my surprise, even shock, Nina Pelletier, Justice Department lawyer, called while she was out of town, left word on my answer machine that the Justice Department was not going to object. For technical reasons it was an order they could have appealed, and that would have killed the opportunity. I was elated. Back in her office in D.C. a few days later, we established dates for John Marsh and Nathaniel Goodrich, longtime general counsel in the 1960s. She then called back and asked me to put off Goodrich's for a week, which I agreed to. Called again to say she wouldn't be able to be there as she had to be in San Antonio on the Waco case, but they would send someone else. All this was normal lawyer behavior, the way things ought be.

My joy was short lived. Late in the afternoon Pelletier called again. Here's what had happened. She had not told the FAA lawyers what she was doing before agreeing to the depositions. Plainly, when she did, after everything was set up, they went through the roof into orbit. She told me she was going to immediately file an emergency motion for a protective order to stop the depositions. She did, spouted the usual false claim that all I was doing was harassing the defendants, and the judge granted the motion, stopping the depositions. What was that harassment? No defendant was being deposed, and the prospective deponents were long retired from the FAA.

A comment or two about Nina Pelletier. She was counsel in an pilot case in Salt Lake City. It involved the usual two issues, lack of a rule, lack of a statute. She filed her motion to dismiss in federal court. At oral argument, rather than say anything, she stood on her pleading. The judge then gave me lots of time to explain the Administrative Procedure Act and how it was violated. When I finished, he asked Pelletier if she had anything to say. She came to the lectern, said she had nothing else.

He then asked her what statute authorized suspensions for violations? I'll never forget her answer: "I don't know your honor"! I about fell out of my chair. It got worse. She then called her FAA Of Counsel, John Knudson, to the lectern. (Sort of a coordinator for the agency). He said, "I don't know either your honor, but I assure you there is one." Here were government lawyers defending against the charge that suspending the plaintiff's pilot license violated his constitutional rights, yet they had no idea of what law authorized such action. There is, of course, none.

My local counsel, Robert Young, long-time general counsel for Rocky Mountain Helicopters, and a fine lawyer now in private practice, then went with the judge's clerk to his library, brought back the United States Code Annotated (not the present version) and showed the judge 49 USCA § 1429(a), which faithfully repeated the language of FA Act section 609. As you've seen in Relevant Law, it doesn't even hint at a connection between suspension/revocation and safety violations. Unfortunately the Mace decision hadn't yet come down, which the judge might have followed and not dismissed the case. That would have forced Pelletier to answer the complaint or file a motion for summary judgment, either of which opens up the opportunity to take depositions. But under the law as then understood he had to dismiss for lack of subject matter jurisdiction. What happened thereafter at the Tenth Circuit, raises my blood pressure fifty points, but that has to wait for a later segment.

1990-91 -- Criticism of FAA enforcement reached something of a crescendo when Admiral James Busey was Administrator. His concern and intention to do something about it was meritorious. His mistake was to assemble teams of FAA officials to attend the gripe sessions held across the country. He should instead have used legal and aviation specialists not connected with the FAA, who would have provided a much more objective report, and not had their findings filtered through the Office of Chief Counsel.

Rob Young, mentioned earlier, and I went to the meeting in Kansas City, Missouri. I talked the FAA people into letting me speak first. They did, and I laid out the illegality of license penalties for perhaps 20 minutes. But it was like throwing a pebble in the ocean. I heard later the FAA chaps said they were sorry to have let me talked first. It made no difference anyway, had my comments made it back to Headquarters they would have been excised by the Office of Chief Counsel before Busey saw them.

Just one positive action came from all that effort: a proposal to expunge a violation record after several years. A meritorious idea. As an FAA study showed, ninety-nine percent-plus were first offenses, most violations inadvertent. States, of course, have been doing this with auto point systems for years. That such records were there indefinitely was a sore point with pilots. If one committed, say, a youthful indiscretion or mistake just after receiving his pilot license, or at any time, the fact it remained on his record ruined any opportunity for major airline employment, a well-known fact.

Busey saw the obvious unfairness of this and wanted violations expunged after three years, a reasonable amount of time; two would have been even more fair, especially considering how stupid and unfair so many cases are. But FAA lawyers talked him into making it five. (After working with Norman Plummer, I came to believe that their attitude towards airmen is: "They are out there, just trying to make trouble for us." I kid you not.)

Remember, certificate suspensions had no legal basis in any event, which is why such a humane policy had never been adopted before. And the way it was handled highlights FAA lawyers' continuous efforts to coverup their lack of authority for license penalties. The lawyers were caught in a bind. For the first time this was a policy they lacked absolute control over, as it was Busey's idea and he was looking over their shoulders. Thus they were forced to publish it in the Federal Register, no getting around that. Remember, prior to this, from 1940 on, absolutely nothing was ever published in the Federal Register that so much as hints at a connection between safety violations and punitive certificate action. This expunction policy, of course, had to show a connection.

Since it had a substantial impact on the public, the lawyers well knew it should have to been put through the NPRM process, as a formal rule to be included in the FARs. That would have provided the public with a chance to comment. Instead they published it in the Federal Register, and called it a policy statement, which doesn't require public participation. This was knowingly false, of course, as it was a rule with a substantial impact on the public. Busey didn't know, so it succeeded in short-circuiting public participation. And that prevented airmen comments from ever being seen by Busey, especially any that questioned authority for license penalties.

NATIONAL TRANSPORTATION SAFETY BOARD

The NTSB plays a key role in the coverup. How? Try to find the word "violation" in its rules for section 609 cases. Those run from 49 CFR § 821.30 to § 821.57. Last time I checked, 95% of airman appeals involved safety violations. The other five percent consisted of genuine qualifications issues, mostly medical involving heart disease; and a few where the pilot refuses to take a flight check or written exam when serious questions rise from some incident, like running off the end of a runway or becoming disoriented on an instrument flight plan. This is what section 609 was designed for -- reinspection to determine if an aircraft is airworthy; reexamination so that the airman has to demonstrate he's presently qualified to hold a particular certificate or rating.

Should the airman feel the order is unreasonable he may appeal it to the Board, which then determines whether it is or not. In one case the pilot was asked to retake both written exam and checkride for a Lear Jet (the latter, very expensive). He went to hearing and the ALJ found the request for the written to be reasonable, but checkride, not so. These cases are rare because inspectors will usually give you a chance to take some instruction, or study up and pass a test, so long as you do it promptly. If you've screwed up, you should realize that a little work to refresh your skills benefits your own safety, as well as that of others. And it usually is much less of a hassle than a legal action.

So why, if 95% of NTSB appeals involve punishment for a safety "violation," is that term missing from the Board's rules? Simple: FAA and NTSB lawyers know that its use would draw attention to the fact that punitive certificate actions are nothing but alternative penalties to a civil money fine. In turn that risks drawing attention to the fact FAA lawyers claim the right, not only to determine what kind of penalty you will suffer, even before you are charged, but authority to decide whether or not you can ever exercise your right to a jury trial. Idiotic on its face, but fact for three-quarters of a century. (See the Marsh Statement, which confirms this absurd claim.)

They faced another problem: how avoid the stale complaint rule, in cases that involved a serious violation, like DUI, reckless flying, or several outstanding violations, and where the six-months had run. In that situation, to "cut off his head," the lawyers would charge that by his acts he had demonstrated the lack of care, judgment, and responsibility required of any certificate holder, and therefore lacked the qualifications to hold his certificate. Like violations, you won't find this rule in the FARs, but only in agency manuals. Another deliberate FAA violation of the APA.

The problem the NTSB faced was how to make a rule that allowed them to get around the stale complaint rule when such a case was presented? They couldn't very well use the term violation, for reasons you now understand, but they had to infer it, since the charges were always based on violations. So the rule begins this way: "Where the complaint states allegations of offenses which occurred more than six months . . .," the goes on to provide:

§ 821.33(b)(2) - If the law judge deems that an issue of lack of qualifications would be presented by any or all of the allegations, if true, he shall proceed to a hearing on the lack of qualifications issue only, and he shall so inform the parties. The respondent shall be put on notice that he is to defend against a lack of qualification and not merely against a proposed remedial sanction.

So here is the Board recognizing an FAA enforcement rule its lawyers know violates the APA for not having been properly adopted and published. And deliberately using a euphemism to mislead the public, instead of calling a spade a spade, a penalty, a penalty.

As an example of the sensitivity to this problem we can look to Peter Lynch, then head of the chief counsel's enforcement division. Look at his response, under oath, to a request for admissions. Asked to admit or deny that the 90-day suspension ordered for Tim Frye, Repo Man, was in fact a "penalty," Lynch called this basic term, "undefined, thereby making the request vague and ambiguous." At the end of the paragraph with that response, however, he did admit that the 90-day suspension was in fact "punishment." This is the kind of playing around with the truth and a citizen's career and constitutional rights that FAA and NTSB lawyers like Lynch engage in.

Inbreeding is what has kept this sort of thing going at the NTSB. Its first general counsel, Fritz Puls, in 1966, moved over from a high-level spot in the FAA Office of General Counsel. The NTSB rules were his responsibility. Obviously, he had no problem continuing a coverup that has now reached three-queaters of a century.

While at GAO I came across a detailed Order of the Administrator laying out enforcement policy. The term "violation," or equivalent, was used 28 times. Yet the lawyers who drafted it refrain from using it in FAR 13.19.

NTSB Law judges -- In 1986 in the case of Administrator v. Komjathy, I made a motion to dismiss, using as grounds the two basic sections of the APA, no statute, no rule. Komjathy was a typical private pilot. Flying his C-150, he'd taken off from Schenectady, New York, to reposition his airplane at a smaller airport ten minutes away. Right after takeoff he ran into a snow squall which, as any pilot who has ever encountered one (as have I) knows, drops his straight-ahead visibility to zilch, but you can look down and see the ground, if you're not too high.

He called the tower and asked for clearance to return and land. The tower told him circle around because it had another aircraft on an instrument approach. So Komjathy did, keeping the airport in sight, and he was finally permitted to land. The incident got into the hands of the lawyers, who dreamed up several charges and instituted a six-month suspension action.

Hopefully, you've read the introduction to this Web site. What the Eastern Region lawyers did was about as stupid as what FAA Chicago lawyer Matthew Markotic did by ordering Ronald Fravel's student license suspended for six-months for practicing a forced landing over a hayfield in "sparsely populated Indiana farming country." While Komjathy knew that light snow was predicted for the area, the reported visibility was lawful for VFR flight when he took off, and he was only going a very short distance. What he learned can't be taught expect by experience. But if the FAA had to do something, they should have asked him to take an exam on weather.

As Paul Harvey would say, here's the rest of the story. Chief Law Judge William Fowler assigned the case to himself. He's the same ALJ, if you read Repo Man, who said that Tim Frye's takeoff from Pittsburgh was an "unsafe" flight. Total nonsense. Nation's Air, from which Frye was repossessing the B-737, could have legally taken off at the same time with 122 passengers.

I didn't attend hearing because of the cost to Komjathy. Early in the case I made a motion to dismiss. Fowler ducked, and ran. Remember, the APA is a basic charter for all agencies, especially those like NTSB, that dispense administrative justice. (An oxymoron if there ever was one.) He wrote a short order that said: "Duly considered and denied." No explanation, nada. Didn't have the courage to face the APA's simple mandates -- because he knew he couldn't and they were a threat to him and the NTSB. In any event I thought Fowler might do something rational like reduce the suspension to 90 days or even less. He upheld the six months.

The Board itself has made rulings in cases I've handled where it has held that it is none of its business that FAA is in violation of the APA. This, even though its members and staff have taken an oath to uphold the constitution and laws of the United States. The Board has made clear that this FAA failure is not its concern, nor is the unconstitutionality of the FAA emergency power. That problem, unfortunately, was neither solved by the Inhofe bill, nor the NTSB rules designed to implement it. Another story.

Just one more point -- Before I got involved, there were just four cases litigated that challenged CAA/FAA authority for punitive certificate sanctions. I've challenged it many times. How FAA and Justice Department lawyers stop that effort would take another full segment for this Web site. But at the heart of the story is their use of every technique possible, within the rules of civil procedure or not, to avoid allowing depositions to be taken of FAA lawyers, active or retired. You've already seen examples of this, so they'll cover the point.

But ask yourself: Why, with all the litigation, do not FAA lawyers go to Congress and ask it to amend section 609 to state in plain language what they have been doing with it all these years? By now you know the answer.

Coverup? You bet!

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