My concern over FAA lawyers' use and abuse of the emergency power began in 1967-68 when I worked there. But that was from only two or three cases involving individuals -- each action brutal and inexcusable. Then in 1985 I got involved with the Go Group operations here in Tucson. (Detailed in "FAA Abuse of Power: A Case Study.") It became obvious that major emphasis was being put on small operators, swatting them like flies. I came to see that the main reason for that was due to the retirement of many older regional counsel who had good judgment. Joe Kovarick, who in 1985 had just retired, then tragically died shortly thereafter from cancer, told me that if an operator was having problems they would go to see him and work it out. He and a couple of other retirees told me they knew FAA inspectors could go into any operator and dig out from the records a long list of violations. (If you've seen the vague rules they have to follow, especially in maintenance, you can understand why.)
Boy! How that changed over the years. As I got heavily involved in trying to do something about the serious abuses I saw, I realized what had happened. A group of youngsters had come along, with little or no experience in the practice of law or aviation, no judgment, been promoted to regional counsel and had become nothing but rubber stamps for inspectors who were worried about their next promotion. Mostly they hit the little guys, but as time went on the operators got bigger and bigger.
When I heard about the bill sponsored by Senator James Inhofe, which was prompted by the Bob Hoover case, with AOPA and EAA pushing it, I met with Senator John McCain for thirty minutes here in Tucson. I told him about MarkAir and Kiwi (both in the summaries), and what an incredible abuse of power they were with such terrible consequences for so many. I'd talked to him a couple of times before and he was well aware of my interest in FAA enforcement. He was against the Inhofe bill. I explained that Mark Air and Kiwi were not unusual, and that there were many more. He said, Why don't you get those operators to write to me? I said that was impractical, but as I was quite familiar with many of the cases, I'd write them up myself.
I then called Ruth Van Mark, Senator Inhofe's legislative director, whom I'd met a few years earlier. I asked if they were going to present to the aviation subcommittee anything about operators. She said, no. I told her about a few of the cases you'll read, then I asked her if they would like to see the summaries I would prepare. She said, yes. I sent them, but never had a letter of acknowledgment, so don't know if Inhofe ever saw them.
I do not know whether the summaries or other material I sent to Senator McCain were ever used in committee, although he wrote me they'd "be kept on hand." As indicated, he was dead set against the Inhofe bill. Afraid that if it passed, and an airliner crashed, he'd be blamed. (Exactly what he told me; the same fear of upper-level inspectors.) I'd become convinced by that time from considerable experience that dealing with Congress was a waste of time, unless supported by a large trade group which could get someone like Senator Inhofe to pick up the cudgel, so never even asked for a copy of the committee report. As columnist Tom Oliphant has described it, Congress is a dysfunctional organization. Amen! And I can explain why. Later.
The Inhofe bill was seriously deficient because neither he nor the trade groups pushing the bill understood the depth of the problems and how they should be fixed. Personally I think AOPA and EAA were just reacting to all the pressure brought on them by their membership because of Hoover, an aviation icon, not some long-term and serious concern about the problem. Letting the NTSB decide whether or not an emergency exists, without detailed provisions on how the issue should be handled, was a disaster waiting to happen. And it did. The Board's rules are absurd. Telling an administrative law judge, particularly the chief ALJ who is 80-years-old, to decide whether or not there is an emergency, solely based on the charges with which FAA lawyers load up their emergency order of revocations, absent an opportunity to cross-examine the inspectors who prepared the Enforcement Investigative Report (EIR), to see if there really is an emergency, is so utterly ridiculous, I'm speechless.
It is but another example of how the Board, just as the Administrator, is dominated by its lawyers. And again this underscores the fact that the term "administrative justice" is an oxymoron. The Go Group story told in "Abuse of Power" is a classic example of how contrived and loaded the charges usually are in emergencies, and I've seen quite a few. Remember, the issue of whether or not an emergency really exists is totally separate from whether not the certificate holder has committed a safety violation and ought to be penalized for it. (For a classic case, be sure to read about Houston Helicopters, where the majority of charges were more than two years old, the rest, one year, except for one or two of no consequence, which were put at the very end. A clever and deliberate technique designed to mislead.)
I do not know of a single case where there was a legitimate emergency. (Not even ValuJet, which had already cut its fleet way down, and had had FAA inspectors running all over it for several months; it's well known it was a political move by a White House afraid of the heat generated because of such a tragic accident.) If the individual or operator is recalcitrant about fixing something called to his attention, the threat of the emergency hammer over his head will correct that attitude. In fact one or two FAA regions have used that used that technique. Why not everybody? If there is in fact a serious threat, there is no need to use revocation, an emergency suspension of the operating certificate will accomplish the same thing, protect the public. That will give the holder a chance to prove there is no deficiency, correct it, or show that it has already been taken care of (usually the situation). But the fact is that inspectors, most always the head of Flight Standards for the region, usually want to get rid of the operator altogether, for reasons previously expressed. They know that almost invariably the emergency order will lead to the demise of the certificate holder, which was their goal. And of course they leave the big guys alone, since that would be too large a bite, with too many questions raised; so they just make their bones with the smaller operator.
What the FAA is careful to conceal from the public is the fact that if all the violations they load into an emergency order were true, it reflects terribly on the training, efficiency, and abilities of line inspectors and, more importantly, the leadership of the same high-level officials pushing for it.
What follows is exactly what I sent to Senators James Inhofe and John McCain.
Here's a prime example of how easily FAA's emergency power can be abused: In 1995 Neil Bergt moved MarkAir headquarters from Anchorage to Denver, where for three years he'd been building a successful B-737 passenger operation. The decades old company was in Chapter 11, evidently at least in part from battles with Alaska Airlines. On July 28, 1995, he asked the Denver FAA manager if there were any more problems; some delays in reports had been caused by the move. Told there were not, four days later he received an emergency order of revocation. It is little known, but six days after that the FAA lawyers from Seattle, who had issued it, flew in to Denver and told Bergt they'd been hasty and he could resume operations! Making it clear they would retaliate if he made any noise about the matter.
On August 1st MarkAir had 165,000 reservations in its computer, a week later, due to the adverse publicity, 65,000! There went the cash flow needed to bring the company out of Chapter 11. Bergt had no choice but to file for Chapter 7. One thousand six hundred employees, count 'em, lost their jobs . . . Bergt, his 100% ownership, probably worth many, many millions.
Comment: Bergt bought MarkAir in 1970. It had been started in Alaska in the mid-50s. When Wien Air Alaska decided to go out of business in the mid-70s, MarkAir took over their stations and routes. For two or three years in the early 80s Bergt was chairman of Western Airlines. He has now started a small operation in Alaska and wants to put the MarkAir matter behind him, so may be reluctant to testify. I would hope he'd see how critical his testimony is because there is no way this egregious abuse of power can be glossed over.
To do: With or without Bergt's cooperation, the Committee (or GAO at Senator Inhofe's request) should request (to be delivered yesterday) from the Administrator a copy of the emergency order issued for MarkAir and served on August 1, 1995. It should be a matter of public record in the Seattle (Renton) regional counsel's office. (If it isn't, then a coverup is going on.) Then a direct question should be asked of Administrator Garvey, and a prompt answer insisted upon: Did or did not Rocky Mountain Region counsel fly to Denver from Seattle on or about August 7, 1995, meet with Bergt and tell him they'd been hasty and he could go back to operating? If the FAA stalls, GAO could check travel records.
Contact: Neil Bergt, 14200 Jarvi Drive, Anchorage AK 99515; Tel: 907/345-0882; Fax: 907/345-1176.
Kiwi International Airlines, Inc. was a startup by ex-Eastern Airlines pilots and other employees. It operated 15 B-727s on the East Coast and Caribbean. Like most startups it lost money the first few years. It then hired a professional management team and by 1995 was starting to break even. It had even won a Conde Nast award. By 1996 several months showed a profit. Their business plan was so strong that a California company agreed to put up $10 million dollars on a note convertible to stock. They did put in $4 millions, then the ax fell.
In June 1996, FAA Eastern Region Director Nicholas Sabatini directed top Kiwi management to come to at a meeting to be held Friday, June 21, 1996, 0800 hours at regional headquarters at JFK. Management thought it was a review of a RASIP inspection they'd undergone a few weeks earlier. (Regional Aviation Safety Inspection Program.) Not many months before, Kiwi had undergone a NASIP (National) inspection and passed with only minor discrepancies. What happened next was clearly ValuJet fallout.
When management arrived, Sabatini, accompanied by Eastern Region counsel Loretta Alkalay, shoved an emergency order of revocation (or suspension, doesn't matter) across the conference table and told them they had to shut down as of noon that day. Also on the table was a press release which the Kiwi people soon learned had already been leaked to the press. The emergency order was completely based on the claim there were discrepancies in, and distribution of, parts of a manual that concerned the company's check airmen. (Who give six-month proficiency checks to line pilots.) Contending a number of them, because of these discrepancies were not lawfully trained, Sabatini and Alkalay extrapolated that into the claim that over one hundred pilots who'd received their checkrides from those check airmen were unlawfully in the cockpit.
Management knew something was wrong with this equation and called to have one of their top operations people come over from Newark. He did. He was able to explain to Sabatini and Alkalay that there was no regulatory basis for the emergency order. The manual in question was designated an "accepted" manual. Basically an internal company document, this meant that all an operator had to do was send copies of any amendments to it to the FAA so they'd stay informed. An "approved" manual requires that FAA inspectors stamp it and any amendments "approved," initial and date it , and return it so it can be posted in company manuals, then complied with. Loretta Alkalay saw that the FAA had no case so she and Sabatini took a break to discuss the problem. Sabatini then insisted, under the clear threat of further action, that the company give him something. (Later in the day a Kiwi pilot faxed to the meeting a copy of a letter from the company's principle operating inspector (POI) a letter specifically approving the manual in question.) So it was then agreed it would park four of aircraft and ground some 42 pilots. Sabatini complained that was not enough pilots, but it was accepted. It is the considered opinion of the people involved that Sabatini was trying to make points for a major Washington job.
Any letters by the company stating that Kiwi's acquiescence was voluntary aren't worth the paper they're written on. I have a detailed statement from one of the pilots who was there the whole time. I'm sure there will be no problem in releasing it, but that's a decision to be made by the Kiwi person you contact.
Kiwi parked the aircraft, which of course meant they didn't need as many pilots and they had to keep up lease payments for aircraft that were not producing. A few months later Kiwi had to file for Chapter 11 bankruptcy. They had tried to keep up their schedules with the remaining aircraft, but it didn't work and increased maintenance costs. The bankruptcy might as well have been Chapter 7. The trustee sold the Kiwi name and its operating certificate to an independent investor. The old Kiwi company ceased to exist. Any shareholder equity, at least $18 millions worth based on what was paid for the stock (but not the real value of a going airline, which would have been much greater) was reduced to zero. The California investment company, of course, bowed out from putting up the remainder of the $10 million. About 1200 employees lost their jobs.
Comment: Interestingly on August 20, 1996, just two months after June 21, the FAA announced it was allowing Kiwi to add two aircraft to its fleet. FAA officials will blow a lot of smoke about previous inspections, and so forth, trying to justify their action, but what is important to understand is that if the RASIP uncovered any condition that threatened air safety to the extent that it justified an emergency order it should have been immediately called to the attention of the carrier so it could fix the problem. This is true for the inspection of any air carrier. Inspectors, if they find any condition which they believe to be unsafe must tell the operator right away. That makes sense. Also remember that discrepancies found in these inspection are a serious reflection on the quality of work the inspectors assigned to that certificate are doing. Virtually all problems are found by scrutinizing records, which is the job of the local inspector..
To do: Obtain copies of the emergency order which, unsigned and not served will not to be a matter of public record, and the press release. In the first FOIA request for the documents the FAA had at the meeting, officials impliedly denied any knowledge of it. Later, when that was appealed, they wrote a long discourse, citing cases, etc., as to why they could refuse to do make it public.
Contact: Capt. Donald E. Grisham, 5 Sexton Way, Key Largo FL 33037; Tel: 305/451-0607; or weekdays his business, Performance Marine, 7701 NW 54th St., Miami FL 33166; Tel: 305/592-1702; Fax: 305/592-9765.
Richard Knipe of Albany, New York, in the early 70s started Mall Airways operating a twin-engine Piper Aztec between Albany and Binghamton. By 1988 he had developed his operation into a thriving commuter regional carrier with seven turbo-prop Beech 99s (about 16 passengers) and a similar but smaller King Air as back up. With Albany as hub, Mall served upstate New York cities, Newark, La Guardia, Montreal and Toronto. In the fall of 1988 the company had a million in cash on hand, and Knipe was about to close a sale of the company to an investor for about $3 millions.
One new inspector, Rene Koch, although not formally assigned to surveil the Mall certificate, helped out its principle operating inspector (POI). He became an agitator to stop Mall from using a video tape for its required annual training of its pilots in emergency evacuation procedures. The video, among others, showed how to use a fire extinguisher and remove the emergency evacuation window over the wing. Mall had FAA permission to train this way and had been doing so for six years.
Koch, who had been demoted as vice president for operations of a substantial Virginia commuter decided to leave that company and join the FAA. It is certain that he prompted a base inspection (regularly performed by local inspectors, so fair enough) in late October of 1988. It covered three days just checking records. Mall had gone through a NASIP less than a year before with flying colors and was routinely given frequent base inspections because it was so close to the FSDO and inspectors could log time there. (Mall was just across the parking lot at Albany County from the Flight Standards District Office (FSDO).) Although specifically asked, neither Koch nor the newly assigned POI told management personnel of any problems.
Three weeks later the company was notified that a special inspection would begin the next day. Koch showed up as team leader of inspectors from other Eastern Region offices. This was absolutely against FAA policy, since the purpose of such inspections is as much to find out if the local inspectors are doing their jobs as it is to check on the operator. It is to be educational for both parties. The appointment of Koch underscores that this was a put-up deal. Koch came in, say, on a Wednesday. Thursday afternoon he excused himself, said he'd be back in an hour or two, and walked over to the FSDO office. When he returned he brought a letter, signed by himself, telling Mall that if they couldn't show their pilots were properly trained in emergency procedures the company would face emergency action. It was clear he meant emergency revocation. If he had meant suspension until the pilots were properly trained, that is what Knipe immediately did, so there was no basis to continue the threat.
Knipe, understanding what Koch was up to, shut down the airline and brought all planes and pilots in the next day and gave them the hands-on training Koch was agitating for. Next day Koch withdrew as leader, another was appointed -- further underscoring this was a put-up job. Eastern Region counsel, Loretta Alkalay, told Mall, continuing the threat of emergency action made by Koch, that it couldn't start up again until the "special" inspection was complete.
Under this threat, Alkalay, and Nicholas Sabatini, then head of Flight Standards, kept Mall shut down for two months! The company tried to recover and started up again, but the damage was done. Mall which had never hurt a passenger in 16 years, stopped operating. One hundred and six employees lost their jobs. No small company, nor most, can take this kind of treatment and survive.
Comment: Key to understanding what was going on here is this: Koch was quoted in a newspaper interview where he claimed that Mall officials had threatened to get him fired. This is utter nonsense. Knipe and his staff were pros, and knew one couldn't do that with a government employee. What they had done, because he was constantly agitating about the video training, was to tell him to get off their backs. Koch's claim had to have enraged Sabatini, thus the phony special inspection right after a base inspection when, if there were any problems that threatened air safety, especially to the extent of threatening emergency action, Koch and the POI should have immediately told the company. To understand why this was a put-up job, consider:
No maintenance charges came out of the inspection. During it, Mall hired a two retired FAA maintenance inspectors to survey records and procedures. They gave Mall a clean bill of health.
The only crew charges were against Knipe, his director of operations, as line pilots, and one or two others. All were related to the claimed defects in emergency training. None stuck.
If the FAA didn't like the use of video tapes, all the FSDO manager had to do was send a letter to Mall (which could have been walked across the parking lot) and withdraw permission to use the video tape. But the unit manager, supervisor of Koch and other operations inspectors, was out recuperating from a heart attack. It is certain he'd have blocked the game that was being played.
Remember, Knipe did give the hands-on training rather than argue, at considerable disruption of his operations. But having started the "special" inspection Sabatini and Alkalay had to keep it going or its true purpose would have been revealed.
To do: If Mr. Knipe does not have a copy handy of the Koch letter, I should be able to get it from storage. There was, of course, no emergency order issued, so no record except Koch's letter.
Contact: Richard X. Knipe, 6 Aspinwall Road, P.O. Box 11354, Loudonville NY 12211; Home: 518/434-1983; Shop: 518/922-5830; Fax: 518/436-3632.
Background: Under the leadership of Ron Hansen, he and other ex-Braniff Airlines pilots started a charter service with four B-737 aircraft leased from American Airlines, which also did the maintenance. Their plan was to charter exclusively to sports teams. They applied for a Part 121 regular air carrier certificate. That, however, was taking inordinately long, and since things were set to go, they applied for and received a Part 125 certificate. These can be obtained from a FSDO and are much less complicated, nor do they need a DOT Section 401 certificate.
On Friday evening December 20, 1991, Airmark was served with an emergency order of revocation of its Part 125 certificate signed by Western-Pacific Region Counsel Dewitte T. Lawson Jr. It was immediately obeyed. This left several NBA teams stranded around the country and put 40 people out of work. A nice Christmas present! The order asserted that the previous May people from Airmark had gone to an NBA trainers meeting in New Orleans and handed out literature and thereafter mailed proposals to several NBA teams. It then alleged it had contracted to provide service for the San Jose Sharks, a hockey team. But Airmark didn't actually make the flight the order charged because its plane was down for maintenance and since it still had to supply the transportation contracted for it hired Great American Airways to take it, which did hold an unquestionably proper certificate. It then charged that contrary to 14 CFR § 125(11), the company was "holding out" to provide air transportation to the public.
Airmark opted for an emergency hearing before the NTSB and got it in early January. As Airmark's press release stated, "At the hearing conducted yesterday in Los Angeles by NTSB Deputy Chief Judge Jimmy Coffman, the FAA admitted its revocation order was in no way based upon the violation of any safety regulations by Airmark." Lawson also agreed he wouldn't throw any roadblocks in their way to obtain their own 121 certificate, an application which had been pending for months and months. But the damage was done. Some NBA teams, believing Airmark was shut down for safety reasons, threatened to sue. The company was never able to get going again.
Comment: Lawson's order was so carelessly slapped together as to be laughable. The holding out was alleged to have occurred with NBA teams; the only flight charged was for a hockey team and wasn't even performed by Airmark but contracted out to a carrier with the kind of certificates the FAA was claiming Airmark should have had! Once Lawson realized this he amended it and included a basketball-team flight.
Part 125 was devised specifically for large aircraft charter after deregulation in 1978. Before that, to charter such aircraft one had to have a certificate of convenience and necessity as a supplemental air carrier from the CAB. But any person or institution could lease any size airplane it wanted to, just like an automobile, and hire a crew to fly it. Before and after deregulation, both FAA and CAB (DOT) were paranoid about someone leasing a large aircraft (anything weighing over 12,500 lbs) and evading the million or more dollars a certificate of convenience and necessity would cost. So the FAA was constantly on the lookout for operations that both leased the aircraft and surreptitiously provided the crew to fly it. The lessor could provide maintenance but not crew.
After deregulation FAA created Part 125 so large aircraft could be chartered to private parties. I don't think they had a scrap of authority to do this, without Congress amending the Federal Aviation Act of 1958. Whatever. I think Congress would have done this if asked, since the idea was a good one. It put maintenance, crew training and qualifications under one roof, where FAA could easily surveil the entire operation.
"Holding out" is a legal concept and criteria developed by case law and used to determine if a carrier is acting as a common carrier, inviting and selling tickets to the public. Before deregulation travel clubs and gambling casinos used to get in trouble over this. The real charge should have been that Airmark was acting as a common carrier without a supplemental carrier certificate. Lawson sort of alleged this, but since it is a CAB/DOT charge the FAA could not have brought any action absent the "holding out" claim. FAA lawyers no doubt had this in mind when they created Part 125 and used "holding out" without defining it and instead of common carriage.
Nowhere in the FARs is "holding out" defined in the FARs. Curiously the only relevant definition may be found in 14 CFR pt 108, Airplane Operator Security. Section 108.3(c), definitions, provides: "Private charter means any charter for which the charterer engages the total capacity of an airplane for the carriage of: (1) Passengers in civil military air movements . . . (2) Passengers invited by the charterer, the cost of which is borne entirely by the charterer and not directly or indirectly by the individual passengers." (Italics in the rule.) Paragraph describes exactly what the NBA and NHL teams were, "private charterers." This is precisely the purpose for which Part 125 was created, and many such certificates were issued. The FAA should explain why this definition is buried in a rules about security.
The issue of whether or not a carrier is engaged in common carriage has always been decided in U.S. District Court in a injunctive action where proof and detailed arguments can be offered by both the government and the carrier, or casino, or travel club, as to how they operate so a legal decision can be made as to whether or not they are "holding out" and acting as a common carrier. Any action against Airmark should have been brought in district court, not as an administrative certificate action. Moreover, from the Civil Aeronautics Administration forward, agency rules and manuals have always provided that the emergency power be used only for the immediate protection of persons and property. And here was Lawson agreeing that no safety issues were involved! FAA inspectors, especially those who issued the Part 125 certificate, had known for months what Airmark was doing.
Contact: Paul A. Lange, Esq., Attorney at Law, 2296 Main St., Ste 2000, Stratford CT 06497; Work: 203/375-7724; Fax: 203/375-9397; Home: 203/372-9876.
Ron Hansen, Pres., Aviation Support Group, Inc., 33971 Selva Rd., Suite 135, Dana Point CA 92629; Tel: 714/489-2670
Walter L. Cole, then an American Airlines captain, now retired, in 1985 started Viscount Air Services, Inc. as a Part 125 private charter carrier. He was essentially picking up the business lost by The Go Group, Unlimited, which had held both Part 125 and Part 121 certificates under two different companies (summary follows). Viscount used British Vickers Viscount four-engine turbo-props. They were in executive configuration, a kind of flying living room. Charters were contracted with entertainment groups in particular. They found Viscounts roomy, reliable, less expensive than jets, and a delight to travel in.
Because the Viscounts were aging, Viscount switched in 1991 to B-737s. When Airmark went down, it picked up on the sports team business. Because DeWitte Lawson had been threatening Viscount on grounds it was holding out, it initiated an application for a Part 121 certificate. To use it also requires a DOT Section 401 certificate of convenience and necessity. Lawson, again on his crusade against 125 carriers, got serious and threatened an emergency revocation, although no air safety violations were alleged. Obviously working in conjunction with FAA, DOT forced Viscount to signed a consent order for illegally "holding out" . . . as a common carrier, which of course it wasn't doing. It refused to process the 401 application until Viscount agreed to "FAA punitive action." Lawson switched to asking for a $300,000 civil penalty. This was negotiated down to $50,000, paid, and Viscount finally got its 121 and 401.
Much of this is reported in the Aviation Daily at 258, August 12, 1992, and is based on statements made by Viscount's Washington attorney E. Tazewell Ellett, ironically a former FAA chief counsel. He is the one who should be invited to testify. Capt. Cole and his then general manager, Robert Fleming, are both operating new companies with 121 and 401 certificates and will be reluctant to do so out of a well-grounded fear of retaliation. (Cole sold Viscount, an extremely successful operation, and the new owner ran it into the ground and bankruptcy.)
Contact: E. Tazewell Ellett, Esq., Hogan and Hartson, Washington, D.C.
Either in Senator McCain's office of that of the Aviation Subcommittee files is a booklet I put together in 1988. It is entitled, "FAA Abuse of Power: A Case Study, The Go Group Unlimited, Tucson, Arizona." It was this case that prompted me to spend 100% of my time, now thirteen years, to bring to the attention of Congress, or whomever, the abuses that occur with FAA's use of its emergency power.
Under the Go Group umbrella was Go Leasing, Inc., a Part 125 charter operation with seven Vickers Viscounts; and Royal American Airways, a Part 121 regular aircarrier operation with three Viscounts. The Go Group contracted with Club Med to carry its members from Fort Lauderdale, Florida, to its resort at Punta Cana in the Dominican Republic. It started the operation by using Royal American Airways. Its certificate was unquestionably legal for the work. For a number of reasons Go Group management switched to Go Leasing. They believed its 125 certificate authorized such a contract with a private organization that was carrying its own members. FAA inspectors were concerned and raised the question. Company counsel met with a ranking lawyer in DeWitte Lawson' office and were told it was their position Part 125 did not authorize such carriage.
What is important to understand, is that all that Lawson had to do was write a letter to the Go Group that told its lawyers that unless they ceased using Go Leasing with its Part 125 certificate he would issue an emergency order of revocation, which of course is exactly the threat he later made with Viscount Air Services. The Go Group could have resumed using Royal American Airways, Inc.. The reason they had stopped using it was because there was only one phone at Punta Cana and often personnel could not reach Go Group headquarters and advise them when the flight had departed. This caused a gap in flight following, which is a 24-hour-a-day requirement for a 121 carrier. HF radio could have been installed in Royal's aircraft and accomplished this, but they were quite expensive, so management thought the 125 operation would be legal. A threat of revocation by Lawson would have solved the problem.
Instead, Lawson instigated a special inspection. During it the inspectors advised management of two problems, which they immediately corrected. Eight inspectors spent five weeks at the Go Group. Five weeks after that Lawson signed an emergency order of revocation of Go Leasing, Royal American Airways, and Go Air, a certified repair station. All this is explained in the Abuse of Power booklet. To say there was an air safety emergency threatening persons and property is to claim the earth is flat. I watched 143 persons lose their livelihoods over absolutely nothing, except what might have been settled as a one or two thousand dollar civil penalty. This is the case that got me started trying to do something about the emergency power and FAA enforcement in general, although I had already written my law review article, Emperor and it was published that year.
Contact: Lawrence B. Smith.
Felton Baker spent 30 years building Houston Helicopters, Inc. into a 30-helicopter operation servicing mainly oil-well platforms in the Gulf of Mexico. One Saturday in September 1990 the Southwest Region director and his counsel showed up at company offices with an emergency order of revocation of its Part 135 air-taxi certificate. They demanded that Baker sign an agreement committing him to sell 100% of his interest in HHI and told him that unless he'd done so by the next day, Sunday, the order would go into effect. Baker signed. His lawyer was authorized to run the company. When Baker didn't move fast enough (as he says, he still had the checkbook), a few months later the FAA lawyer issued another emergency order on what clearly appear to be trumped up charges. Baker asked for and got an emergency hearing in which the administrative law judge (ALJ) made it clear he didn't like what was happening. In any event, HHI was put back in business. The adverse publicity on this second go-round crippled his business. He managed to survive with three helicopters. As of this writing, in his late sixties, he has built back up to a half-dozen.
Comment: This is another plain example of FAA officials deciding they want to get rid of an operator and using the emergency power when there was no emergency. Why? The order starts off reciting a large group of alleged violations that arose out of a NASIP inspection in 1988. That meant a majority of charges were two years or more old and, of course, any valid ones had been fixed or civil penalty paid. The next set of charges involved events that occurred a year before. They alleged that the company had hired an auto reupholsterer to work on several aircraft and that the material used did not meet FAA flamability standards. The last charge, dated May 1990 was that certain parts of a landing gear assembly were found by a HHI mechanic and an FAA inspector to be worn beyond limits, yet HHI transferred these parts to another aircraft. Baker insists it wasn't true. This charge was obviously the real motivating factor. Even were it true, destroying 30-years of effort is a little bit much, as opposed to a rational civil penalty. Moreover an inspector can arbitrarily ground a commercial aircraft for up to five days; this gives lawyers time to issue an emergency order suspending its airworthiness certificate, which makes it illegal to operate.
Contact: Felton M. Baker, President, Houston Helicopters, Inc., a3506 Lockheed, Pearland TX 77581; Work: 281/485-1777; Fax: 281/485-3701.
Active Aero Charter, Inc. is a small air-taxi freight operation out of Willow Run Airport at Ypsilanti, Michigan that uses small jets and turbo-props to transport high-value auto parts to auto factories in and around the U.S. and Mexico. In September 1991 the FAA issued an emergency order of revocation of the pilot certificates of seven of its pilots. They were immediately grounded. The basis of the order was discrepancies in crew time reports. These had been discovered almost one year earlier in October 1990. What was the emergency? No action was taken against Active Aero Charter's certificate, although in many cases that would have been normal procedure.
Back after the Go Group actions in 1985 I came up with the idea of petitioning a court of appeals to appoint a district judge as its master to provide a hearing in which the certificate holder could challenge the claim that an emergency existed requiring immediate effectiveness of the order. This was based on Nevada Airlines, Inc. v. Bond, 622 F.2d 1017 (9th Cir. 1980). The Ninth Circuit held that it was a violation of the Fifth Amendment right to due process not to have an immediate hearing in which to challenge the FAA claim an emergency existed. It also said, due to the fact that Congress had given jurisdiction over FAA orders to appeals courts, it would provide the hearing. The court recognized that a company could be destroyed long before the NTSB could rule within the 60-day time limit for emergencies. The NTSB says it has no authority to determine whether or not FAA's claim of emergency is justified. Courts of appeals are not constituted to provide hearing and nothing in the FA Act suggested this, but the Ninth Circuit was obviously trying avoid declaring the entire power unconstitutional, which it should have done. Years earlier the highly respected U.S. District Judge Charles Wyzanski also declared lack of an immediate hearing to be a violation of due process. See United States v. Harper, 355 F. Supp. 904 (D.Mass. 1972). FAA lawyers have made no move to ask Congress to rectify this glaring constitutional problem, although it is mentioned in their enforcement manual.
One of the pilots affected had read an article of mine and called me for help. I faxed pleadings from another case (Butler, which follows) to their Washington, D.C. lawyer. He immediately utilized my pleadings and filed a petition asking the D.C. Circuit to appoint a master. Frank, et al. v. Busey, No. 91-1469 (D.C. Cir. 1991). In short, it asked the FAA to immediately justify its claim there was an emergency; the court left hanging the possibility it might appoint a district judge as a master to provide a hearing. The FAA did not even try to justify their claim and withdrew the emergency nature of the order.
There is an additional and important facet to all this: the lawyer (who happens now to work for Active Aero Charter) petitioned the D.C. Circuit to review the suspensions handed down to some of the pilots. In it he challenged the constitutionality of the emergency power. FAA lawyers then called him and asked what it would take to get his clients to drop the appeal. Even though the FAA had won and had no fear any suspension would be overturned on other grounds, they offered $15,000 under the Equal Access to Justice Act to reimburse Active Aero Charter for the legal fees it incurred, if they would do so. I don't know the details of what happened to the suspensions of the pilots, which I presume were wiped out, although at least some of the pilots, during the emergency, had already served a suspension. The money was paid; the appeal was dropped.
What this illustrates is real politic at the FAA; it lawyers are obviously sensitive to the unconstitutionality of the emergency power and, of course, not only have never done anything about it, but don't want it exposed and this would have been an excellent case in which to do that because of the preliminaries noted.
If Active Aero Charter balks at testifying or submitting a statement, because of fear of retaliation by FAA officials, I have enough documents in my file to back up the fact the FAA dropped the claim of emergency. The D.C. Circuit's and FAA's files are probably in storage but would show the whole affair. Peter Lynch of the FAA would have been in charge of the matter and should be questioned.
Contact: Active Aero Charter, Inc., Jerry Ward, Dir/Ops, 2064 "D" Street, Willow Run Airport, Belleville MI 48111; Tel: 313/483-7833.
In October 1990 the Southwest Region issued an emergency order of revocation of Mr. Butler's air transport pilot certificate (ATP). Revocation was based on the claim he presently lacked the qualifications required to hold his airman certificate. That assertion arose solely from unsworn and unsubstantiated allegations that he handed over to an FAA inspector documents from an air-taxi operator that certified he had received appropriate training to be listed as a pilot for that company. To understand how sloppy these cases get, the order did not allege Butler knew the documents were false or that he knew a signature may have been forged, or that he had anything to do with them except hand them over. In fact, that's all he had done.
He had been flying for Yute Air, an Alaskan air-taxi that had been revoked. The principals of that sent him to New Mexico to qualify with a small air-taxi whose single aircraft could then be brought to Alaska to operate under that certificate and complete lucrative contacts held by Yute. FAA officials had known of the matter since February 13, 1989, or earlier, as it is a violation charged against Air Ruidoso the New Mexico company. The charge had absolutely nothing to do with the exercise of Mr. Butler's pilot privileges. As FAA had revoked N.M. company's certificate (likely in conjunction with Alaska FAA lawyers to thwart the owners of Yute) he never even got to fly their aircraft. Yet a year and nine months from the alleged incident he was deemed to be a threat to air safety.
Long since, with wife and family, Butler had moved to Houma, Louisiana and was flying as a corporate pilot for a substantial law firm, St. Martin, Lirette & Shea. He also towed banners on the side. I put together pleadings for the Fifth Circuit Court of Appeals in New Orleans that asked them to appoint a master to provide a hearing on the legitimacy of the emergency claim. On a Sunday night I faxed 28 pages to FAA lawyer Peter Lynch, whom I knew would be in charge of the response. Michael St. Martin, a tough-minded plaintiff's attorney, joined on the pleadings with me. He was unable to get them filed in New Orleans on Monday, but did first thing Tuesday morning. Within two hours Lynch called him and said that if they would drop the case and promise not to sue, the FAA would drop the case against Butler entirely! Of course, that settled the matter.
Comment: This is a terribly important case because it ties right in with Active Aero Charter. No matter how unconstitutional the emergency power is on its face, FAA lawyers desperately want to avoid any risk of an adverse court decision, even though there are already two cases on the books.(Nevada Airlines and Harper).
FAA lawyer will deny they use revocation, especially emergency revocation, as punishment. But this is an utterly false contention and Butler is one of the best cases to underscore that fact.
Contact:Darryl Christen, Attorney at Law, 518 School Street, Houma LA 70360, Tel: 504/851-1516; Fax: 504/851-3401.
Robert C. Butler: current address unknown. Christen may know, but likely the FAA would have it at Oklahoma City.
In early 1988 Rocky Mountain Helicopters, Inc. of Provo, Utah, underwent a NASIP inspection. RMH supplied hospital med-evac services, the helicopters being operated as if they were the hospital's own. After being there only a few days, two of the inspectors met with Jim Burr, president. He and brother Bob had founded the company 20 years before. The inspectors asked him to voluntarily turn over the company's Part 135 air-taxi certificate. When he declined they threatened emergency action. A few days later he met with them again and told them that if they used the emergency power and a single person died, say, on the highway who would have been picked up by one of his helicopters, he would come after the FAA in the press.
That evidently quieted the emergency threat. More than a year later, March of 1989, the FAA issued a civil penalty letter for $712,000. All charges arose out of the NASIP inspection the previous year, which means anything that could be fixed or corrected had been. The vast majority of the dates of the alleged violations arose in 1986 and 1987! A year later, what was the emergency? A substantial number of the charges involved allowing certain components in a number of helicopters to run over their time limits. These occurred because the company had switched from a Data General data processing system to IBM and clerks making the transition inadvertently failed to pick up these items. No aircraft crashed because of this. FAA lawyers will charge a penalty for each flight of each aircraft with an overtime component, which accounts for the huge size of the proposed civil penalty.
RMH had 48 med-evac contracts around the United States, including Alaska. An emergency order would have instantly grounded all of these helicopters. (It would have been issued from the same FAA region that later revoked MarkAir.) RMH was doing $60 millions a year with 600 employees. I was called in to advise auditors preparing a financial statement for a bank to tell them whether there was any possibility the company would get stuck with $350,000 or more. If not the matter could be mentioned in a minor footnote. I told them not a chance. The claim was negotiated down to $150,000, payable in three installments. Longtime company general counsel Robert Young will state that they would have fought that amount and the underlying charges (he had defeated the FAA in a district court case before), but Burr was taking the company public and didn't want to have the problem reflected in a prospectus, so they made the settlement.
This case is a vivid example of the mindset of FAA inspectors, supervisors and lawyers. Destroy a 20-year-old company, wipe 600 jobs without the blink of an eye.
Contact: Robert H. Young, Esq., Prince Yeates & Geldzahler, 173 East 400 South, Suite 900, Salt Lake City UT 84111; Work: 801/524-1000; Fax: 801/524-1098; Home: 801/272-3121. (He will know how one can contact Jim Burr, who no longer has an interest in the company.)
In the fall of 1991 Larry Rivers had his private pilot license revoked on an emergency basis. He'd been an Alaskan hunting guide for 20 years. (Guides were authorized to carry customers with only a private license.) At the end of the season Rivers was returning from his Brooks Range camp to Fairbanks in his single-engine, six-seat, Cessna 206. He'd closed his camp and had loaded the craft with duffel and two of his guides. Most of the seats were out, as was usual, to make space for the bulky cargo. Belts were available for the guides.
In flight the aircraft blew a jug and he had to make a forced landing in the tundra next to a lake. The plane rolled 280 feet then flipped over on its back. The guides were shaken up, evidently not seriously. Rivers reports that one who had been with him for fifteen years tried to extort $10k from him under threat of telling the FAA he had flown with his engine running at 100% of power, and other allegations. Whatever, the guide went to the FAA and told them about this and the lack of seats. The Alaska Region counsel then issued an emergency order of revocation of Rivers private pilot license.
What was the emergency? Obviously, none. The airplane wasn't going anywhere. (It was repaired enough to ferry it and then flown off the ice when the lake froze over.) Rivers season was over, he wasn't a commercial pilot who could sign on and fly for someone else. At the emergency hearing NTSB ALJ William R. Mullins reduced revocation to a nine-month suspension. This would have overlapped with the start of Rivers' next hunting season, but was far better than revocation. The Board reinstated revocation.
The man had an accident, why destroy his business and reputation.? The engine in his aircraft was rated for continuous operation at full power. But no pilot or owner would operate it that way; it is far more economical to run an engine at 65% or 75% of power. This saves fuel, maintenance and overhaul costs. His aircraft had received an annual inspector from an FAA mechanic with inspection authorization (IA) with the seats out. Rivers honestly did not believe that constituted a violation. No doubt many bush pilots were doing the same. If he had committed a violation, a stiff money fine would have been sufficient penalty. He had to give up his guide business.
Contact: Larry Rivers, Box 107, Talkeetna AK 99676; Tel: 907/733-2471; Fax: 907/733-1070.
Art and Linda Hayes owned and operated Glacier Bay Airways at Gustavus, Alaska for 13 years. Operating up to 5 single-engine aircraft, some on floats, they'd never hurt a passenger while flying in some of the worst terrain and changeable weather in Alaska. They had a fulltime mechanic at Gustavus, a settlement of 250 souls adjacent to the National Park. They're were literally a taxi service from there to Juneau, 45 miles to the east.
In the summer of 1989 they were getting the same scrutiny the head of FAA Alaska Region Flight Standards Tom Westall was giving to many air-taxis. It turned out that their chief pilot, who was FAA authorized to give annual VFR (visual flight rules) checkrides for the other company pilots, had totally pencil-whipped an annual ride for one of them. He didn't tell Hayes, who learned of it several weeks later. It was right in the middle of their intensive summer season, so Hayes let it slide. The chief pilot did it because the pilot he was going to check, who was standing by the aircraft at 0900 in the morning waiting to go, had 2,000 hours in a Cessna 206 on floats, the chief pilot had just gotten his float rating so had about 20 hours. Moreover, the checkee was current in the same model airplane using landing gear. (The chief pilot at the same time was trying to get a job as an FAA inspector.) About all he had to do was get in the aircraft, fly for ten or fifteen minutes, have the man execute a few maneuvers, a water landing, taxi to a dock, and he'd have been done. (The plane had amphibious floats.)
Well after FAA-Juneau inspectors became aware of this, on Friday, October 13, 1989, at 1800 in the evening, Hayes was served with an emergency order of revocation. (It is well-known in the industry that Friday is a deliberate tactic. Your lawyer'll be quaffing a couple of martinis at a saloon, and judges gone fishing.) Besides the checkride, there were just a few other charges, like failing to have a pilot actually discharge a fire extinguisher, or actually inflate a life vest. There was no clear regulatory requirement that one had to actually trigger off the extinguisher, and up till then most operators in Alaska hadn't been doing so. What is one going to do, go to Point Barrow to find a company with the special equipment required to recharge it?
None of this even came close to justifying revocation. A civil penalty, sure. But that's besides the point. The importance of this case lies in this. I was called to represent Glacier Bay. By that time I'd realized neither NTSB nor any court was going to touch the legitimate constitutional and Administrative Procedure Act issues presented by the FAA's regulatory enforcement program. If the agency doesn't have any rules that do so -- which it most certainly does not -- how can one attack such a system when they are necessary in order to explain how it works? (Lack of rules is not accidental, but deliberate policy of the Office of Chief Counsel.) I knew the only way to do so would be to get a case into U.S. District Court where one could take depositions.
So I instructed Hayes to fly the next day right in the face of the emergency order. Using one Cessna 206, they made six flights to Juneau that Saturday. I talked to FAA Region Counsel John Curry and challenged him to go to federal court. First the FAA faxed a $60,000 civil penalty letter, then a week later had the U.S. Attorney in Anchorage file a lawsuit. ($10k per violation.) I was elated. The Hayes were going to be out of business anyway unless they got their certificate back; for a number of reasons, we waived the emergency NTSB hearing, which turned out to be fortunate. October started the winter season when their business fell off 80% or more. So the shutdown wasn't crippling and the Hayes had very loyal customers.
Later, we had no difficulty with the Anchorage U.S. Attorney's office setting up depositions in Washington for three or four FAA attorneys, mostly retired. A week or so before they were scheduled in February 1990 my clients called and said that unless they knew they'd be back in the air by March, they'd be out of business forever because their three main customers had to line up other operators if they wouldn't be. Glacier Bay Airways had the exclusive right to land and taxi up to the dock at the lodge located on the park proper to take tourists flightseeing. With a large float plane they also serviced a kayak expeditions company. Their biggest customer was a cannery on a remote island that employed 250 during the fishing season.
I called Curry and asked whether if we would admit the checkride charge, we could get revocation reduced to a suspension for time served (about four months by then). Curry said he'd check with Washington. Within 48 hours he was back telling me they said okay. This was my first lesson, of at least four, in how desperately the Office of Chief Counsel does not want any FAA lawyers, past or present, deposed and subject to cross-examination to explain how the FAA enforcement program works and all its contradictions. The long-time NTSB Office of Law Judges supervisor told me they'd never, ever heard of the FAA backing off an emergency revocation. This case, of course, shows the same pattern of ducking cases that FAA lawyers might lose, as do Active Aero Charter and Robert Butler.
In February 1996 I got retired FAA lawyer John E. Marsh Jr. to give me a voluntary sworn statement, like a deposition. He is an expert's expert on enforcement by virtue of spending 21 years at it. Unfortunately we didn't have time in one day of intensive back and forth discussion to get into the emergency power. I worked with Marsh in 1967-68 and knew him to be an honest man. The Aviation Subcommittee should have a detailed paper I wrote explaining the problems with enforcement and quoting extensively from the Marsh transcript. It also has a floppy disk containing the entire 460 pages.
One more thing. The Hayes, with rumors flying, had an idea they were going to get hit, so called me early. They were number 7 of 8 (perhaps 8 of 9) small air-taxis that Alaska Flight Standards Director Tom Westall had revoked during a 16-month period. So I prepared a petition to the Ninth Circuit for a temporary restraining order and asked appointment of a master to provide a hearing on the emergency issue. First thing Monday morning (after Friday) the venerable Richard Chambers, here in Tucson, a country lawyer in the mold of Sam Irvin of North Carolina and many years Chief Judge of the Ninth Circuit, granted the TRO. It created quite a splash in Anchorage. No lawyer had ever gotten one before -- or since. The petition got quashed a week later by the regular Ninth Circuit emergency panel, with no explanation. But this got the Alaska Air Carrier Ass'n involved and they complained about what had been happening to so many small operators. Senator Ted Stevens, then as now a member of the subcommittee, asked Senator Wendell Ford of Kentucky, its then chairman, if he could hold two days of hearing on the emergency power. I was to be one of three witnesses. Ford turned him down. And so it goes.
Contact: Lawrence B. Smith.
Art Hayes, P.O. Box 1, Gustavus AK 99826; Tel.
907/697-2314.
Alaska Island Air, Inc. of Petersburg, Alaska, was 8 of 8, or 9 of 9, depending on who's counting. A month after Glacier Bay, November 1989, Westall and Curry issued an emergency order of revocation of its air-taxi certificate. Dane Roundtree, then 33, third generation Petersburgian, was buying the company from his father Lloyd, who had lost his medical certificate. Dane, at that young age had 18,000 hours of flying in the Petersburg area and had never had an accident. Flying was all he knew. His father bought AIA 22 years earlier. It had operated up to five or so water-only aircraft, but after deregulation brought on competition was down to two planes, with Dane temporarily the only pilot. The central charge, of just a few, none involving maintenance or airman qualifications, was that Dane had fraudulently prepared a certificate to show he'd had properly qualified to carry passengers in scheduled operations in the specific type of aircraft.
This charge would be laughable, except for the human damage done by the emergency revocation. His Principal Operating Inspector, during a routine base check, noted that files containing old pilot material, and suggested he get rid of this non-current stuff because if he underwent a NASIP inspection the team might find a lot of seeming violations they could use against the company. Good advice. On a later visit the POI couldn't find the appropriate certificate for Dane. It was thought it got thrown out with the old stuff. So he advised him to reconstruct one so it'd be in the files. Dutifully, Dane went back through his logbooks and did so.
Then Westall, continuing his reign of terror, sent one of his cohorts down to scrutinize AIA's records. He learned Dane had reconstructed his certificate. So Westall saw to it he was charged with fraudulently recreating it! All this came out at the mid-December trial before ALJ Jimmy Coffman. A longtime FAA inspector, by then an accident investigator for the NTSB, who'd been AIA's POI back in the late 70s, among other witnesses, testified it was one of the best run air-taxis out of two dozen in Southeast Alaska. After two long days, it only took Coffman ten minutes to reject revocation, a rare victory in such cases, no matter the facts. The next day the FAA lawyer handed back AIA's operating certificate.
But the damage was done. Major long-time customers had to switch to other operators during the hiatus and didn't return. There's always a stigma from revocation. Dane tried to keep things going, but couldn't. His sister and mother lost their jobs with AIA. He got a place on a fishing boat for a while, sorted logs for shipment to Japan, even bid on dynamiting rock to be crushed for a road-building project. He had to sell the new house in which he lived with his lovely wife and four children and move into a house trailer. He ultimately acquired a Piper Super Cub and was successful bidding on a contract with Alaska Game and Fish to fly out and scout schools of fish for the Petersburg fishing fleet.
As Paul Harvey would say, here's the rest of the story. Dane found the original certificate just before trial because I'd instructed him to go through them all and bring anything that might be relevant. AIA's former chief pilot was there at the hearing told me a previous inspector had noticed the lack of such a certificate and instructed him to make one up! He did. That was the one. Dane didn't know that. The real irony, however, is that Dane started flying in 1978 at age 18; the rule wasn't promulgated until 1980, so he should have automatically been grandfathered in without need of a certificate. The rule is dumb. I at first thought it meant that a pilot new to a particular scheduled air-taxi (it doesn't apply to on-demand flying) had to have a route check. That's not it. It's only to demonstrate that he can fly that make and model aircraft with passengers in it, and thus show he can handle the extra weight. I have sworn testimony from an inspector in another case that if one had such a certificate from an operator in Florida, say, in a Cessna 206, it would be valid for a 206 years later, in Alaska, or anywhere.
The Regional Aviation Weekly, Dec. 29, 1989, reported:
FAA enforcement officials, described as embarrassed by an NTSB administrative law judge's overturning of the emergency revocation of Alaska Island Air's operating certificate, plan a "major outreach" to the Alaskan aviation community . . . The reversal, said to be based on the lack of a case, was "very unusual" and the agency now "recognizes it may have gone too far" in its enforcement activities . . .
FAA-Alaska stopped using emergency revocations for several years. Holman W. Jenkins Jr., in his July 2, 1996, Wall Street Journal op-ed column, critical of the FAA and how it picks on the little guys, mentioned Glacier Bay and Alaska Island Air and noted, "Providing the legal advice was Lawrence Smith, an aviation attorney who has waged a decades-long campaign to bring due process to the FAA."
Contact: Lawrence B. Smith.
Dane Roundtree, P.O. Box 963, Petersburg AK
99833, Tel: 907/772-3696.
Jack Sallee, a former Braniff Airlines captain who'd gone through its two bankruptcies, years earlier bought a farm and other real property at Sequim, Washington. He built an airport on the farm. Then started a little air-taxi with a single-engine, four-place Cessna 172. Around 1989, when San Juan Air, which operated in Puget Sound from Friday Harbor to SEA-TAC, and other locations, closed down, Sallee, dba Coastal Airways, decided to pick up the slack. He bought three twin-engine, ten-place Cessna 402s, two of them having been San Juan Air's. By 1990 he was breaking even with his annual gross running at half a million.
That spring, the Seattle FSDO, concerned about his expansion, pressured him to hire a full time director of maintenance. He did, and hired the same mechanic who had that job with San Juan Air.. He'd worked on the same two 402s acquired from there. At Coastal, none of these aircraft ever had an engine shut down. Yet in late June the FAA issued an emergency order of revocation of Coastal's operating certificate. Earlier, in late April several inspectors came out to Sequim for an inspection. Testimony at the hearing indicated these particular individuals, led by one from whose reputation and behavior can fairly be described as an FAA hit man. This leader made it clear he wanted to find enough to revoke Coastal's operating certificate. After the inspection he so recommended. Robert Hill, his boss, testified in his judgment there wasn't enough for revocation, so didn't approve it.
Then what prompted it? After the April visit, the Seattle FSDO started a campaign of harassment against Coastal. At least three dozen times they pulled ramp inspections, mostly at SEA-TAC. This of course disrupted schedules and upset pilots. Coastal's POI, a young man in his early thirties with limited FAA experience, rode a Coastal plane over to Sequim. Got off and walked over to a public telephone outside the terminal. Sallee, at 6'3", a John Wayne look-a-like Texan, frustrated and hot because of the harassment, walked to the booth and told the POI to come out and talk to him about what was going on. He didn't assault the man, but the inspector evidently thought he might. Hill testified it was after this episode he decided Coastal had to be revoked. But they didn't have enough yet. So the inspectors went out and interrogated current and past pilots -- always intimidating. One of them Sallee had known in the Air Force and had generously helped with his own little air-taxi. He'd finally been fired because of the obnoxious way he treated passengers. They were told they would get immunity from prosecution but not what they might be prosecuted for or that it was otherwise planned. (A favorite trick in the Seattle area.) They got them to describe their checkrides to the Nth degree, then charged that they had been improperly given. Those firmed up revocation. If the charges were true, civil penalties would have been appropriate, and sufficient.
What is important here is that the law judge, one of the best, told me and the FAA lawyer after the hearing was over, and he'd upheld revocation, that he didn't want to revoke and wouldn't have but was swayed by one bit of testimony he was convinced was not truthful. Even if that were the case it involved only a small part of what was thrown at Coastal and didn't justify destroying the company.
After receiving the emergency order, Coastal made flights the next day to SEA-TAC -- not at my direction but because Sallee felt obligated to a number of passengers on vacation who'd come to the Olympic Peninsula on Coastal and needed to get to SEA-TAC to connect with United Airlines or other major carriers Coastal had interline connections with. The FAA got the U.S. Attorney to get a TRO in U.S. District Court. She granted it, but insisted on a quick hearing and provided it within a few days. Coastal had stopped flying, anyway. Sallee, at my suggestion, hired Bill Helsell, a tough, former prosecutor and head of a prominent 50-man lawfirm in Seattle, who I'd heard about because he was a close friend of Scott Crossfield, who I'd met because of his interest in FAA enforcement. Seeing this as a great opportunity, we filed a counterclaim alleging constitutional violations concerning the emergency power.
Now there are two major points here. We had to listen to the Assistant U.S. Attorney argue that the judge had no subject matter jurisdiction over the counterclaim. So here we were, the U.S. Government in all its majesty saying that it could go into district court to enjoin the citizen from illegal acts, but the citizen could not do the same if his government was committing them. Unfortunately, that appeared to be the law at the time. (My later case, Mace v. Skinner changed that. If all you do is challenge the constitutionality of the order, not the merits of the charges it contains, the district court has jurisdiction. A rare and excellent decision by the Ninth Circuit.) The FAA had been very successful getting lawsuits thrown out of district court, contending that if there was agency order involved, it should go to the NTSB, from there to a court of appeals. Its lawyers well knew that the NTSB refused to consider constitutional issues, and that it was virtually impossible to get an appeals court to come to grip with such issues without being able to make a record of how their enforcement system works, impossible without depositions, since there aren't any rules.
The second point is this: The Judge went ahead, before she dismissed our counterclaim, and allowed us to have a fair hearing on whether there was in fact an emergency. As we were packing up brief cases and preparing to leave, she told us, "You can guess how I would have ruled." Meaning, of course, she'd have found no emergency existed and put the company back in the air.
Forty employees, as loyal to Jack Sallee as any such group could ever be, lost their jobs. The FAA also revoked the Air Transport Pilot certificate of a one-time 747 captain with 30,000 accident-free hours of flight time, 3,000 in Air Force and Navy jet fighters.
Contact: Lawrence B. Smith.
Jack Sallee, 1246 Old Olympic Hwy, Sequim WA
98382; Tel: 206/683-8283.
When emergency revocation orders were issued in early 1992 against both company and owner Chris Marsden's ATP. Neither he, an 11,000-hour former Navy pilot, nor the company had a record of certificate action or civil penalties. Operating out of Friday Harbor, using up to nine aircraft, several of them twins, Air San Juan/ChartAir, Inc. had a seven-year perfect safety record in passenger service. (It long before occurred to me, after Glacier Bay and Alaska Island Air, especially, that this was virtually a requirement for the revocation of a small air-taxi.)
What happened is Marsden, who admittedly had a temper and didn't do these things gently, fired his chief pilot who had screwed up on a flight and who also lived in the small community of Friday Harbor. That no doubt embarrassed the man greatly. It is clear he promptly went to the FAA (very common occurrence all across the country for disgruntled ex-employees; FAA inspectors lap it up) and told them Marsden was keeping an improper second set of aircraft discrepancy records. It turned out this same informal set was legal when he was operating only single-engine aircraft. When he went to twins the requirements became more technical with specific forms required. What he'd then done with this record book was informally use it for pilot gripes about a loose window crank, that sort of thing, what he considered minor. But the FAA painted it as a sinister plot.
In any event, the FAA right away mounted a special inspection and gave the operation a good going over. Robert Hill, boss of the inspectors, testified at the hearing that after the February 1991 inspection they'd had no intention of revoking the company but of levying some civil penalties. There's a pattern here. Half a year later, in September, Marsden blew up on the telephone with his Principle Operating Inspector. He and this man had gotten along swimmingly for four years. But Marsden had long before applied for a Minimum Equipment List for his twins. The MEL is vital for complicated aircraft because it allows the operator to defer maintenance on certain equipment for a day, perhaps several days. MELs are required for the big jet airliners. This means that if certain components fail on the way to SEA-TAC, for instance, they wouldn't have to be replaced till the aircraft returned to home base where there'd be spares. Extremely important.
Marsden had applied for the MEL at least two or more years earlier, but the FAA kept dragging its feet, which is why he finally blew up with his POI, who was responsible to ramrod the matter. The very next day at SEA-TAC, voila!, an inspector showed up for a ramp check. Hardly a coincidence. But that didn't give the Seattle FSDO enough ammunition. Hill testified that early in December several ASJ pilots, as if they were standing in line, voluntarily came in to complain that things were unsafe because they hadn't received adequate checkrides. Sound familiar? Cross-examination of all these pilots destroyed Hill's claim they voluntarily came in. With one pilot, the FAA found out he was riding jumpseat on a United Airlines flight on his way back from vacation. An inspector met him at SEA-TAC, asked him to defer his flight back to Friday Harbor and come to the FSDO. There he was interrogated in minute detail about a long-ago first checkride with ASJ. Another pilot had been accepted to join a substantial northwestern U.S. regional carrier. He had a potential violation charge hanging over his head of which these inspectors were aware. Was he going to jeopardize a marvelous opportunity to advance himself?
The ALJ was a man who'd spent 28 years as a railroad lawyer. Every few minutes he would comment that he knew very little about aviation, even though he had several years as a law judge. He of course upheld the FAA. The emergency orders of revocation were issued in March 1992, three months after Hill testified the pilots stood in line at his office to complain about Air San Juan. So what was the emergency? Only 18 employees lost their jobs, another dozen part-timers, Marsden and his wife their years of mindbending effort. And so it goes.
Contact: Lawrence B. Smith.
Chris Marsden, P.O. Box 1101, Friday Harbor WA
98250; Tel: 378-3964.