The only penalty system Congress has ever enacted is civil money fines with right to jury trial. (Modified in the early 1990s to allow administrative hearings; even those, however, raise serious constitutional questions for many violations that should have the right to a jury trial.)

The term "administrative justice" is an oxymoron. Justice cannot be administered. The phrase, "rule of law," which we heard bandied around so much during the recent presidential election, is meaningless to FAA and NTSB lawyers. The license-penalty program, now three-quarters of a century old, provides a splendid example of why this is so.

(Our thanks to J. Scott Hamilton for sending us this, an avid fan of Gary Larson, somehow we missed it.)

Our concern about the agency's enforcement program began, literally, three days after arriving there in October 1967. (See the quote from the Jennings Roberts memo in the section, "How Others See Larry's Work.") It deepened three weeks later, after we'd read the relevant acts of Congress, Air Commerce Act of 1926, Civil Aeronautics Act of 1938, Federal Aviation Act of 1958, and gotten some idea of how the system really worked from the enforcement material received by our branch from all regions. Our job was to oversee the entire program.

We saw that there was absolutely nothing in any of those laws to support license penalties. Three appeals court cases, however, had held that vague language about public interest and air safety in the 1938 Act was sufficient to support a grant of power to create "deterrent sanctions." It was repeated in the 1958 Act; interestingly, however, no such language may be found in the 1926 Act, when this penalty system was instituted, so how could it have had anything to with congressional authorization? As noted, Congress had not only provided civil money penalties for safety violations, but the right to jury trial. (All of this is covered in detail in our law review article, Emperor, which you will find here.) Since it was clear that FAA lawyers could choose which program to impose, license penalties with an administrative hearing, or judicial civil-money penalties, it meant they were claiming the power to decide if you could ever exercise your right to jury trial!

To say the least, we found this incredible. To hear it from the horse's mouth, we went to branch chief Norman Plummer. And said, Norm, you get an airline pilot who busted an altitude restriction and you'll generally send him a civil penalty letter saying the case can be settled for, let's say, $250. But if he says, I didn't do it, or it's an unfair amount, he doesn't have to do anything. You, however, must go to a U.S. Attorney and ask him to file suit in U.S. District Court, where the pilot has the absolute right to "demand" jury trial.

On the other hand, if you get a business man flying his Beech Bonanza, who does the same thing, you'll send him a notice proposing to suspend his license for, say, 60 days. He then must appeal to the National Transportation Safety Board for an administrative trial, and the only way he can be punished is by license suspension. But, we said, you could have sent him a civil penalty letter like the airline pilot. Norm agreed. He could do nothing else. That's exactly how the system works. (You'll see this confirmed, under oath, in the "John Marsh Whitepaper.")

"That means that you, personally," we said, "determine whether or not he'll ever be able to exercise his right to jury trial." His response -- never to be forgotten -- "The courts have approved it."

Any lawyer who thinks such a court decision should be respected and not challenged, or that Congress would knowingly pass a law that authorized such drastic administrative penalties without hearings or legislative history, and through use of such vague language, raises a serious question as to how he or she got their law degree.

Let's put the purpose of this website another way. In a recent interview in The Flyer, FAA Inspector Fred Stein, manager of the Teterboro, New Jersey, Flight Standards District Office (FSDO), is quoted as saying, "There is a general distrust between the FAA and the general aviation community." What Mr. Stein and other inspectors will learn here, and as the site grows, is why airmen have every right to distrust the FAA. (Be sure to read "Summaries of Emergency Cases.")

The problem is not with inspectors. Like any organization, public or private, the FAA has some bad ones, but the policies the must operate under. The great majority like Mr. Stein want to do a good job. One inspector out of the Scottsdale FSDO, George Giberson, when we were discussing a case several years ago, said that he figured 70% to 80% of inspectors were in favor of what we was trying to do: force reform of FAA enforcement. Giberson is no lightweight. Now fully retired, he spent 26 years in the private side of aviation and, rather than retire, worked for a half-dozen years as an inspector, and a darn good one.

Where's the problem? Right smack in the Office of Chief Counsel. That office totally dominates the agency.

Many of you already understand the pain inflicted by FAA license penalties: loss of your job, any chance for a career with the big iron guys shot down, loss of income, harm to small operators who must replace a pilot, affront to your pride in your pilot's license . . . Since 1967 we've either read cases, or talked to the pilot in dozens of them where the penalty is so out of proportion to the alleged offense it would offend anyone's sense of justice -- except an FAA lawyer's.

Here are our two favorite examples of screwy penalties, seen while at the FAA. The Chicago office ordered the 180-day suspension of a student pilot for practicing a forced landing over a hay field in "sparsely populated southern Indiana farming country." No kidding! Ronald Fravel, a good 'ol country boy from that region, and heliarc welder in Louisville, had bought a Cessna 120 for $2,000. (Remember, this was 1967.) On a bright sunny summer Sunday he was out doing what any student pilot should. He saw a hay field and decided it made a desirable and safe spot over which to practice a forced landing. (Even non-pilots understand that such ability is a lifesaving skill.)

Fravel evidently didn't notice that up at the far end of the field there was a house off to the right in a grove of trees. The farmer, on this nice lazy afternoon, was disturbed by the noise made when the go-round was initiated, and called the FAA. The inspector who took the call, and his office, as they are strictly instructed to do, forwarded the suspected offense to the lawyers. Virtually all discretion on the part of inspectors was taken away from them after the Second World War, so that no matter how inappropriate they thought punishment would be, they had to forward the file to the lawyers. Many, if not most inspectors, were World War Two flyers who had the experience and ability to make rational judgments. Evidently Washington headquarters believed a "country-club" atmosphere existed, that those veterans were too cozy with pilots, many themselves vets. So their judgment was not trusted.

Handling the case from Chicago was FAA lawyer Matthew Markotic. He was a Hungarian immigrant who walked out of there during the 1956 uprising against the Soviets, and deserves credit for that. However, he had no aviation experience whatsoever and thought a 180-day penalty was appropriate.We had already seen many, many such cases-- they were handed out like water -- but this one took the cake.

What really firmed up our view of the situation came when we stepped into Plummer's cubicle. Obviously telegraphing our disgust with such an obscene, irrational penalty, we asked him what he thought about it and he said, "I don't see anything wrong with it."

After leaving the FAA, and working on a book about the utterly stupid, unfair cases seen there, we interviewed Fravel. (In the next segment of this website you'll be able to read the drafts of a couple of chapters.) The poor guy really couldn't understand what he'd done wrong, and it's no wonder. He was "bumfuzzled" by the whole thing, he said. He took the case to the NTSB where the hearing officer (now called administrative law judge) reduced it to 120 days. Big deal! (There were at least two sensible NTSB hearing officers at the time, both WW II Navy pilots, who would have either thrown it out, or reduced it to a token ten days.) So Fravel had to remain grounded for four months. How, you ask, does that promote aviation safety? It doesn't, as any pilot can tell you. Hopefully this case and the next will help Inspector Stein find the answer to what he is puzzled about.

The case should have been handled like this: the inspector call Fravel, tell him of the complaint, get his side of the story, which was entirely credible (there was no question of buzzing), ask him to be more careful in the future and check for any nearby dwellings. Then called the farmer back, told him Fravel apologized, was a young man and student pilot doing what he was supposed to, and that he promised to be more careful in the future. There is no doubt that this would have satisfied the farmer. (Based on comments he made at the hearing.) But under the rules the local FAA office was required to forward the case.

If the FAA lawyer had to have his pound of flesh, a $50 civil penalty would have been half rational. The cost to the government in time and expense ran to several thousands. You will learn from Emperor, and the "John Marsh Whitepaper," that the reason for choosing the license penalty over a money fine is because it is easier for the lawyer to sign a suspension order than trying to talk a reluctant U.S. Attorney into taking the case. Guilty or not, 99% of airmen would gladly pay a reasonable amount rather that lose their license, even if they strongly felt they were not guilty. Another strong motive for the FAA attorney is he or she gets to go places and play trial lawyer.

In stark contrast to Fravel, was another mid-sixties case in Oregon. The pilot was operating an Aero Commander, Cadillac of light twins. He held only a private license. He evidently was out taking some friends for an ride. Now, as pilots know, the rules require one to operate an aircraft in accordance with the manufacturer's operating manual. The Aero Commander is a high wing aircraft. Twins like the Beech Baron or Cessna 310 are low wing. Thus when one debarks from them, the door acts as a safety barrier and the slope of the wing naturally forces the passenger to step back towards the tail from whence he boarded, and use the step provided to get to the ground. Few pilots would leave the right engine operating, but if so, these facts virtually eliminate the hazard, unless the person is blind or trying to commit suicide.

The Commander's manual, on the other hand, since one ducks through a small door to the cabin that is under the left wing, right behind the engine, requires that at all times the engine not be operating as passengers are boarding or getting off. You can see what's coming. This pilot let a woman debark who was allegedly under the influence. He didn't shut down the engine. She wasn't injured -- SHE WAS KILLED!

Can you guess the size of suspension the FAA lawyer ordered? You won't believe it. Thirty, count'em, three-zero days! You can see why these are our two favorite cases.

While at the FAA, it was clear that the attitude among the lawyers, was "They," are out there just trying to make trouble for "us"! Believe it.

Want to have some fun? Ask any FAA inspector or FAA lawyer (or your own counsel, for that matter) to give you an exact quote of any language from any statute or FAR that so much as hints they can take your license as a penalty for the violation of an airsafety rule.

As citizen and lawyer we believe fervently in the Rule of Law. But we wonder sometimes if our motivation to do this work is due to some sort of psychic transference. A half-dozen years ago, returning from a family reunion in St. Louis, we stopped at Haven, Kansas (northwest of Wichita), and took pictures of the farm where our father was born and called home for 26 years. The new owner happened by and we learned that his mother, also born in 1898, was dad's close childhood chum, and was living at a nearby nursing home. The visit with her was emotional for us both; she was very fond of him. She related that Wilbur and Orville Wright's father was bishop of their United Brethren Church, just up the road from both farms, and always stayed with her family on his annual tour from Ohio. She could remember him talking about his boys jumping off roofs of barns with an umbrella! (This had to be not long after their 1903 flight). Grandfather Smith's family were also active members. We mentioned this to a cousin, who said, "Oh, yes, mother told me the Bishop had dinner with the Smith family." Generational osmosis?

For what its worth, at Christmas 1946, when we were home from our freshmen year at Grinnell College, dad told how he'd had to turn down lunch with Orville Wright. By that time, he was vice president and acting president of the new World Bank, was organizing it, and had quite a work load. Like an idiot, we never asked him what the occasion was, and he died the next month. Wouldn't you like to brag to your fellow airmen your old man had lunch with Orville?

Just how threatening to the FAA is the material you'll be seeing on this website? Long before we realized the potential of a website, we'd decided that the only way to force reform of FAA enforcement was to write a book, which would be much harder for FAA lawyers to dodge. Since there was never any money in representing airmen in enforcement cases, we tried to find an angel who would finance the modest amount required to write it.

An aviation consultant put us in touch with a veteran of aviation enterprises who'd accumulated a fortune of many hundreds of millions of dollars. After studying the same material you'll see here, and more, he told our intermediary he was going provide the means we needed. Whoopee! But a few days later came a letter from his general counsel saying to forget any support from that quarter. Through someone close to the would be benefactor, we found out that as soon as the lawyer learned of his plans, he warned his boss that were the FAA to find out he'd helped us, they might retaliate against one of his companies.

We then approached another man of similar wealth and significant interests in aviation, who faced problems with the FAA from time to time; his response was the same, the FAA might retaliate.

Jay White, retired UAL 747 captain, lawyer, and long-time president of the California Aviation Council (later renamed Calif. Pilots Ass'n.), in 1989, wrote in its newsletter an article entitled, "FAA Must Be Stopped!" It dealt with the sudden inspection and issuance of an emergency order against a longtime and respected FBO. Jay talked of a "most flagrant abuse of FAA's awesome power." And called the FAA, "an agency run amok. Its enforcement and punishment system is out of control . . . these Gestapo tactics cannot be tolerated."

Later that year the Council sent petitions with 2,000 signatures to Congress asking that it reform enforcement. That went over like flatus in a windstorm. In the next segment, you'll be advised of some simple actions you can take that will forcefully bring the license penalty problem to the attention of the Administrator (if this segment hasn't already), who certainly isn't going to learn of it from the Office of Chief Counsel. Their coverup will for certain be exposed for her to see.

In the meantime, if you want to do something constructive right now, write to Senator Orrin Hatch of Utah. He's chairman of the powerful Senate Judiciary Committee. The matter belongs there because of the patent constitutional and APA violations. When he understands their extent, we're confident he'll do something about it.. In years past we've talked twice with his aides but lacked the resources to follow up with travel back and forth to Washington. Hatch is dedicated to the Constitution and Rule of Law. Address him thus: Honorable Orrin Hatch, United States Senate, Washington, D.C. 20510. You might send copies to your own senators and congressman. And please tell us through the comment section here that you have; and, if its not more than a page or two, provide a copy of the entire letter so others can see it too.

We want to thank Dave Sclair, owner of The Flyer, now published by his son, Ben, editor Kirk Gormley and his predecessors, who've given us their wholehearted support since 1989. Published in Tacoma, Washington, Dave took a small, local, aviation journal, and has built it into an informative and excellent, bi-monthly publication, which is growing in national importance.

Todd Huvard, former owner and publisher of The Southern Aviator (now owned by The Flyer), and its then editor Mike Collins.

Jacquelyn Lanpher, owner and publisher of the Atlantic Flyer, which plays an important role in the New England aviation community.

Jim Baumgarner, a senior editor who has covered the FAA over many years for McGraw-Hill's Aviation Daily, and its managing editors, who have given their strong support to our work since 1989.

The late Arnold Lewis, whose sudden and unexpected death from a massive heart attack was a blow to the staffs at Business and Commercial Aviation, Aviation Daily, and all who knew him. His and B&CA's management's strong support since 1989 helped sustain us through what has been a long and otherwise lonely battle. Arnold, we miss thee.

Special thanks to a then young and idealist pilot, who shall remain unnamed, because he's still active in aviation, without whose financial support in the early 1980s we could not have taken the time from a sputtering venture of great scientific importance to write our law review article, Emperor. (Once they know the full extent of the problem, Inspector Stein and his cohorts may well cheer him for his key role in this effort.)

Thanks to Professor Paul Stephen Dempsey of the University of Denver College of Law, director of its transportation program, who took only two weeks to accept Emperor for publication. And J. Scott Hamilton, an adjunct professor there. Scott is an aviation lawyer who knows how devastating to airmen the FAA enforcement system can be, and who no doubt played a substantial role in assuring Professor Dempsey of the extent of the problem and validity of our work.

And many others, who know who they are and that they have our deepest gratitude.

Last, but certainly not least, our heartfelt thanks to Bill Williams and his company, Future Information Design (FID), here in Tucson. Without his broad knowledge of computers, software, their manufacture, and the setup, care and feeding of websites, not to mention his reasonable charges, this one would not have been possible. We found his shop, ably staffed by his lovely wife, Shirley, only because of a harddrive failure that caused a lot of grief, but sometimes good things happen because of bad. He's got 30 years of indepth experience, twenty-three with large corporations and, tired of travel, set up his own shop here seven years ago.

We suggest that you review the entire table of contents before proceeding.

Thanks for your visit. If you wish, for any reason to contact us, please, e-mail first. lbsmithaty@aol.com.