FAA DROPS REPO MAN CASE AT LAST MINUTE

by Lawrence B. Smith

Atlantic Flyer Oct. 1998

GAN/Flyer Oct. 1998

FAA Washington officials have dropped the ATP-suspension case against Timothy R. Frye who repossessed a B-737 from Pittsburgh International Airport in October 1995. This came after Washington attorney, Nathaniel R. Breed Jr., filed an appeal to the full Board from an adverse decision of Chief NTSB Law Judge William F. Fowler Jr. New blood in FAA's Enforcement Division realized Frye should never have been charged in the first place.

Recall that Frye, then chief pilot for Vlscount Air Services, Inc., Tucson, Ariz., was instructed to go to Pittsburgh and repossess a 737 leased to Nation's Air, a start-up behind on payments. With legal papers, permission of airport manager and lawyer, accompanied by an airport cop, Frye took possession of the aircraft and departed at 0330 hours.

Nation's Air had to know what happened, yet told the press the aircraft had been stolen. The media then proceeded to embarrass FAA officials by asking how someone, during a level-three security alert, could walk out on the ramp at a major airport and drive off with an airliner?

Obviously trying to retaliate against someone, many months later, FAA Regional Counsel Loretta Alkalay proposed to suspend Frye's ATP for 180 days. She charged the 737 was unairworthy because: (1) the constant speed drive (CSD), which interfaces jet turbine with generator, needed servicing; (2) the auxiliary power unit (APU) drew too many amps on startup; (3) the left outboard landing-light bulb was missing.

The first two were facially false. They were reported, not on the aircraft log but on non-routine maintenance forms, not appropriate for a line aircraft, that company mechanics filled out after it departed. No mechanic in his right mind would laboriously open the cowl, check CSD oil-level, then button it up without putting in the needed oil. It was of course closed when Frye checked aircraft and log book. It is not possible to tell how many amps the APU draws on startup because it'll peg all the way.

During walk-around, Frye found the bulb missing, and as an A&P, believed he had authority to write it up in the aircraft log book. The 737 minimum equipment list (MEL) allows the aircraft to be operated with only two of four landing lights working.

This aircraft, had it been operated by Nation's Air, could have legally departed at the same time with 122 passengers. Same result had Nation's Air asked Vlscount to send a crew for a Part 91 ferry to Tucson for maintenance.

Failing to exercise the judgment one should be able to expect from a public servant, especially a lawyer who has the power to make life and death decisions about airmen and operators, Alkalay had no one else to retaliate against except Capt. Frye, who was only doing his job. Viscount had gone into Chapter 11. She even tried a civil penalty against the holding company that leased the aircraft to Viscount, to no avail.

I attended the informal conference in Scottsdale, Arizona, with Felix Howard, Vlscount VP maintenance. FAA western-Pacific Region lawyer Naomi Tsuda, who sat in on behalf of Alkalay's office, had no trouble understanding why the CSD and APU were phony charges.

As a result, Alkalay dropped those two and in the formal suspension order reduced the penalty to 90 days. She also charged that Frye didn't do a walk-around, even though she had a statement from the airport cop that he'd watched him do it. She also charged that the flight violated Part 125 (large aircraft charter). This was utter nonsense. Sloppy and unprofessional? Alkalay's case went to trial on the Fifth Amended Complaint. (Throw enough mud on the wall, some might stick.)

Virtually every airman who's been through an NTSB hearing calls it a kangaroo court. They're right. At the end of the day-long hearing, Fowler immediately read into the record his decision, which had obviously been thought out long before. He held the 737 was not airworthy, "nor was it safe to fly . . . this flight was a dangerous flight." That Frye violated Part 125 because it wasn't a legitimate ferry flight.

In his late 70s and long eligible to retire, Fowler's been chief law judge for decades. He rejected Frye's testimony and accepted that of FAA inspectors. Evidently he thought he was being just by dropping the penalty to 60 days. His decision was plain nonsense.

There are broad implications to this case. Early this year the U.S. General Accounting Office published a study of enforcement that focused on airline maintenance. Inspectors griped that their recommended penalties were cut lower by higher-ups. Look at this case. The CSD and APU charges were phony. A Pittsburgh inspector put together an investigation file. Why didn't he pick up on this? Incompetence. He forwarded it to Eastern Region Flight Standards where it had to be scrutinized by several people at the highest levels. Incompetence. Worse, why didn't Alkalay, as any prosecutor should do, scrutinize the validity of the charges? Incompetence.

If one thinks this is unusual, I interviewed a carrier owner who moved his certificate from one region to another. (His case will make another article.) Ensconced in the new location with new inspectors, one walked up to a company 737 and jiggled the flaps. He refused to be dissuaded that this was normal. The company had to get a letter from Boeing explaining that this was designed into the aircraft.

Now, look at the mental hell Tim Frye had to endure for two years. Here was a 33-year-old ATP with 7,000 hours, 5,000 as PIC in 737s and 727s. A former Eastern Airlines pilot, when the case started he was making an effort to get back to a major carrier. An absolute dead-end with this case hanging over his head. Having been a consultant to Viscount when Tim was chief pilot, I've never known anyone as sharp on the regs as he is. Dedicated to air safety, as an A&P he spent time he didn't have to doing maintenance and helping to make sure his aircraft were airworthy.

The happy ending for Tim is that he was part of a lawsuit brought by ALPA against the holding company of Eastern and Continental that gave ex-Eastern pilots the option of being picked up by Continental. He was and is doing fine. And I hope he makes captain soon. He's the kind of airman we need there.

Conservatively, at least $50,000 in legal work was put into Tim's case. This is pure idiocy Why does it have to wait until the last minute for FAA officials to recognize this was an utterly stupid case, even were there a technical violation.

I brought an action in federal court in Tucson to try to stop the case. It was dismissed, as usual. That will be the subject of a later article when a decision is had on an appeal.

All airmen should remember there's no statute that authorizes the FAA to take your license as a penalty for violating a safety rule; there's no FAR rule that tells you this can happen, there's no legislative history Congress ever considered such a proposition.

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HOW TO GET AHEAD AT THE FAA

Comment -- While preparing this segment I read that Nicholas Sabatini had become FAA Associate Administrator for Regulation and Certification, having moved over from head of Flight Standards. Sabatini was Eastern Region Director, and without doubt ordered Loretta Alkalay to find a charge, any charge, to bring against someone, because of the embarrassment he suffered because of the B-737 repossession. Without question, he and Alkalay were responsible for the pain and anxiety Tim Frye had to endure for so long, not to mention costs, that ended up closer to $100,000.

Mall Airways -- If you haven't already, be sure to read Summaries of Emergency Cases. Sabatini was directly responsible for the destruction of Mall Airways, a small and successful commuter out of Albany, New York. There, he and Alkalay used the threat of an emergency order to shut down the company for two months. No maintenance violations were ever found, nor did they expect to. Mall was heavily surveiled with its headquarters right across the parking lot from the FSDO at Albany County airport. It had successfully passed an intensive national inspection earlier in the year.

Although owner Dick Knipe, after the two-months down-time, tried to get Mall going again, the damage was done. One hundred and six loyal employees lost their jobs. Knipe, who had spent years building the company up from a single light-twin, was about to close a sale for three million dollars. The motivation for the inspection was a new FAA inspector, Rene Koch, who claimed company officials had threatened to get him fired. He had persistently agitated about the use of a video tape to train pilots in evacuation procedures for the Beech 99, although they'd had written FAA permission for six years running to do so. Since Koch had no official authority over Mall, but acted as if he did, they had only told him to get out of their hair.

Sabatini, motivated by what he thought was an affront to one of his inspectors, had Koch, in a special inspection make a veiled charge about the training and imply Mall would be shut down on an emergency basis if it didn't correct the problem. All Sabatini would have had to do was order the FSDO manager to send Knipe a letter withdrawing permission. As a matter of fact, Knipe, knowing what Koch was up to, shut down his airline for a couple of days, brought all the pilots in, and gave them the hands on training previously shown by video. Even though the basis for the threat was now moot, since there was compliance, Sabatini and Alkalay told Knipe he couldn't start up till they said so, and had inspectors continue the inspection, even though the only FAA complaint was Koch's quarrel about the video tape.

Kiwi International Airways -- Sabatini was also directly responsible for the destruction of Kiwi International Airways. Kiwi was a four-year-old startup by former Eastern Airlines pilots who put up a great deal of their own money to do it. He called company officials to JFK after a special inspection that was prompted by the ValuJet crash a few weeks earlier. That inspection mistakenly called an internal manual an "approved" type, which requires prior FAA permission to use, when in fact it was only an "accepted" type. Sabatini slapped an emergency order face down on the conference table, told them they would have to shut down as of noon. He refused to believe them when the company president told him it was an "accepted" type.

While the meeting was still going on, the Kiwi director of training in Miami, having learned what the beef was, faxed a copy of a letter to JFK received two months earlier. In it the company's Principal Operations Inspector (PIO) had acknowledged the manual as an "accepted" type. That sort does not require advance FAA approval to put into use.

Confronted with the letter, Sabatini and Alkalay had to back off. Sabatini then insisted he had "to have something." And in effect blackmailed company officials into grounding four of its fifteen B-727s, and 42 pilots. He and Alkalay had no legal authority whatsoever to do this. Had there been any other matter they claimed was an immediate threat to air safety, it would have been in their prepared emergency order. Moreover, if there is anything wrong with an aircraft, inspectors have authority to arbitrarily ground it for five days. That would provide time for an emergency order suspending its airworthiness certificate to be prepared. Lacking company counsel with in-depth experience in enforcement, company officials complied. And the strain on its operations caused its demise.

The irony of all this is that the manual, which only went to eight company check airmen (who give the FAA required six-month check-rides to other company pilots), could never have possibly justified the claim of emergency in any event, even were it of the "approved" type. Checkrides are governed by specific rules laid out in the FARs, not some company manual.

The Kiwi people who attended the meeting came away convinced -- and there's little doubt about it -- that Sabatini was gunning to be appointed to replace Tony Broderick, previous FAA head of regulation and certification. He had become designated scapegoat after the ValuJet crash, and was quickly forced to retire.

Obviously, Sabatini, former New York cop and helicopter pilot, rising over the carcasses of companies he'd made his bones with, got his wish.

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