TRADE ASSOCIATIONS

SUMMARIES

AIRCRAFT OWNERS AND PILOTS ASS'N

AOPA's leadership, including trustees, ever since I sought help in 1969 from "Doc" Hartranft its longtime president, lawyer and a founder, has shown zero interest in doing anything about FAA's unconstitutional use of license penalties. This hands-off attitude has allowed the illegality of thousands of brutal and unfair enforcement cases to go unchallenged by the one organization with the most clout.

AOPA general counsel John Yodice agrees FAA has no authority for license penalties and is likely in violation of the Administrative Procedure Act, yet refuses to do something about it, although his members bear the brunt of the system.

The one time AOPA and EAA did take any such action, occurred only because of membership pressure resulting from the egregious abuse of FAA's emergency power in the Bob Hoover case. What came out of effort was a mess

If you are an AOPA member, you must read the entire piece. Every airman should.

AIR LINE PILOTS ASS'N

ALPA, in the period 1957-1976, spent literally tens of thousands of dollars in legal fees in four cases challenging license penalties. Its lawyers blew it. To learn how, read the story, or all the details in Emperor. In 1980, after my stint at GAO, I met with its general counsel, Gary Green, and advised him of how vulnerable FAA was under the APA for lack of a statute or rule. He showed not the slightest interest, although he commented that I certainly knew a lot about enforcement. I've learned a whale of a lot more since.

ALLIED PILOTS ASS'N

The leaders of this American Airlines pilots' union, made it clear they had no interest in doing anything about license penalties. One of its staff lawyers, however, was interested in FAA's vulnerability under the APA, but the leaders had spoken.

EXPERIMENTAL AIRCRAFT ASS'N

Same as AOPA. The leadership of both groups received copies of the Marsh Whitepaper, along with a floppy disk of his entire sworn statement in which he agreed there was neither statute nor rule to support license penalties. And that you only get to exercise your right to jury trial if the FAA lawyer decides to put you on that track of justice.

NATIONAL AIR TRANSPORTATION ASS'N

NATA will likely play follow the leader, if AOPA and EAA do something.

NATIONAL BUSINESS AIRCRAFT ASS'N

NBAA president John Olcott was interested, and no doubt would follow AOPA's lead.

CALIFORNIA PILOTS ASS'N

CPA is the one bright spot. In 1989 they sent petitions with 2000 signatures to Congress asking its member to do something about enforcement. The fact this went over like flatus in a windstorm. This experience underscores how imperative it for AOPA and EAA, with their political clout of hundreds of thousands of members, to take the lead.

___________

AIRCRAFT OWNERS AND PILOTS ASSOCIATION

AOPA is the largest and most active aviation trade group. In the early 1980s it had about 260,000 members. Today, add another 100,000. Its leadership is absolutely disinterested in doing anything about FAA enforcement, no matter how much it violates basic constitutional principles and mandates of the Administrative Procedure Act.

Make no mistake, I once had the greatest admiration for AOPA. I joined it in 1950, while in college. I borrowed some money and bought a Cessna 140. The plan was to fly it to Alaska and sell for a profit, and work there for the summer. A fraternity brother went with me. I remember going to AOPA headquarters like it was yesterday. They were over a People's Drug Store in a building caddy-corner across 15^th Street from the Treasury Department.

Max Karant, an AOPA stalwart for years, briefed me on how to get over the Alleghenies. With only 100 hours under my belt I was concerned about mountain flying with which I had no experience. He told me to fly up the Susquehanna River to Sunbury, Pa., then head west as the easiest and safest way. The flight to Alaska over the Alcan Highway and into Alaska, viewing glaciers at midnight, never having seen one, was the most thrilling flying experience I've ever had.

The carpenters and plumbers in Alaska were on strike all that summer, so no one was buying airplanes. My friend and I wound up as gandy dancers on the Alaska Railroad; then flew Rudolph the Red Nosed Cessna home. Back in college I made a couple of trips with it from Charlottesville, including one to New Orleans for a football game, then sold it to pay off the loan.

In 1969 I made my first contact with AOPA about enforcement. I sat down with its then president, "Doc" Hartranft. Doc was a lawyer who in 1939, along with a handful of others, created AOPA. He was its first president and held the position for about 30 years. I was well into writing my book about the unfair and dumb enforcement cases I'd seen and documented at FAA. I let Doc read several chapters. I was looking for monetary support as I was living on savings and the tank wasn't going to last the trip. I'll never forget what he said when he turned me down: "It's too controversial."

My next contact was in 1981, after my 1980 GAO stint. It also described in my letter to the AOPA trustees, which follows. With a pilot friend, I met with John Baker, president, who'd succeeded Harttranft on the latter's retirement, and John Yodice, Washington counsel (later elevated to "general" counsel) at AOPA headquarters in Bethesda, Maryland. Yodice's law offices were in the same building.

I spent an hour and a half laying out the drastic and unfair consequences resulting to airmen from use of suspensions and revocations as penalties for a safety violation. My friend had come close to having his career as a big-iron pilot destroyed by a totally unjustified enforcement action. I explained FAA's lack of authority for certificate sanctions and its vulnerability to legal attack under the Administrative Procedure Act. It was like talking to two stumps. Baker had been a lawyer in the Justice Department in aviation litigation; then moved to FAA. He wound up in an FAA office concerned with general aviation, hence to AOPA. Presumably he knew something about the APA and Constitution of the United States.

Frankly, I wasn't very happy because of Baker's and Yodice's refusal to do anything. Had I had the power I would have fired them both. Still feel the same way. I do not understand how any person trained as a lawyer, in such a position of trust, making a generous salary, and having the facts of the enforcement program's illegality dropped in his lap, along with a road map of how easy it would be to attack it, could look at himself in the mirror.

What really underscores this violation of AOPA members' trust is the fact that at the same moment I was talking to Baker and Yodice they were preparing an insurance program to cover a member's cost of legal representation in a license penalty case! Go figure.

Yodice for years has organized annual seminars for lawyers on FAA enforcement. His favorite NTSB law judge to participate is Patrick Geraghty. Every lawyer and airmen that has ever been before him would agree that he is the worst. Cozying up? It got so bad that some years ago Dina Clayborn, NTSB "clerk of court," was asking lawyers, including me, about Geraghty, because her shop had heard so many negative comments. Pat reached 30 years of government service several years ago and I'm sure that all who have had a hearing before him were hoping he'd retire. But he has not. Oddly, if you get Pat away from his ALJ position, he is an affable and friendly person, or at least used be when I knew him at FAA. It is a safe bet that in those seminars Yodice never discussed the Administrative Procedure Act.

Yodice, besides the sin of doing nothing, took deliberate action to keep his members from learning about FAA's illegal actions. When my law review article Emperor was published in 1985, I sent an announcement that outlined it to the editor of AOPA's monthly newsletter (later integrated into AOPA Pilot). I called him, he said he'd have to have Yodice review it. Emperor, if you've read it, explains in detail why license penalties have no basis in law, and how FAA has covered that up by its failure to promulgate any rules that even allude to them. Yodice watered it down to a short, meaningless announcement that AOPA member Larry Smith had written a history of FAA enforcement.

Yodice's bright and attractive lawyer-daughter, Kathleen, for years worked in FAA's Office of Chief Counsel, with direct responsibilities in enforcement. Now she's with AOPA, and I suspect is being groomed to take over her father's job. Will Kathleen also ignore the rule of law? Basic constitutional and statutory rights? Most likely.

In my September 1987 article in Aviation Digest, "FAA: Illegal Disciplinarian?," I said that ALPA and AOPA are "mirror image bureaucracies to FAA who don't want to risk their ties to the agency . . ." Who can deny it. Don't make waves.

Example: Rob Young, then general counsel of Rocky Mountain Helicopters, and I were in Washington to talk to aides of Senator Orrin Hatch. That over, we wound up at Mike Pangia's offices uptown. Mike is a bright and affable lawyer who, like John Baker, went to FAA from Justice, then onto private practice. He'd recently held a meeting in his office of the officers of the NTSB Bar Association of which he was president. They were going to work to defeat the new civil penalty administrative hearing program that FAA and Congress had fallen in love with during its try-out years.

Motivation for the program was 5,000 pending civil penalty cases against airlines for airport security violations (timely topic, that), mostly sneaking weapons and explosives through checkpoints, for the operation of which the carriers were responsible. Since each case would have to be filed in U.S. District Court, they would have put a tremendous load on the federal court system had the airlines challenged them. And, as we have recently seen, making airlines responsible for security, which then contracted it out to private companies, was an FAA boondoggle of grave proportions. Under the ex-post-facto law prohibition in the Constitution those outstanding case could not have been tried with any new system of justice. Probably all were all settled, as they usually are. The administrative hearing system was in fact ultimately adopted by Congress. Air carrier cases went to DOT law judges, individual airman, to NTSB.

Mike told us Yodice had attended the meeting and announced that AOPA joined in opposition to the new program. While there John received a phone call from AOPA legislative people; they told him to drop opposition because they had a deal with Congress on something else. He did. I later saw Yodice at a Lawyer-Pilots Bar Association meeting. He acknowledged the story's accuracy. Folks, this is real politics.

By its actions, AOPA has shown it could care less about the rule of law and has sacrificed its members constitutional rights because the organization doesn't want to offend FAA officials by embarrassing the agency about a program that has had no legal basis now for three-quarters of a century, and the doing of which might affect their chances of blocking or shaping bread and butter rules or legislation they support or oppose. Isn't this America? What happened to moral courage?

Have you read the Marsh Statement? Do so. Here's the expert's expert on FAA enforcement agreeing there is neither statute nor rule to support license penalties. This is a direct violation of the Fifth Amendment's due process clause and the Administrative Procedure Act. Marsh even candidly admitted that one may enjoy his right to jury trial only if the FAA lawyer chooses to put his case on the civil penalty track, rather than certificate. (Be sure to read FAA Blackjack). The point? I sent the Marsh Whitepaper, along with a floppy disk of the entire 461-page sworn statement, to Phil Boyer, AOPA president, Paul Poberezny, EAA founder and chairman, and others. I might as well have dumped them in the trash.

Boyer and Yodice, and EAA did take action about FAA's unconstitutional use of its emergency power, but only after they bowed to intense pressure from members who made the brutal abuse of that power as used against aviation icon Bob Hoover a cause celeb. I unhesitatingly say that I know more about the emergency power than any lawyer extant. Read the Summaries of Emergency Cases. AOPA and EAA bungled it. What they ended up with was an utter farce.

The NTSB is the worst possible place to decide whether or not there's a true emergency that justifies the immediate shutdown of an operator or grounding of a pilot. I even once drafted a bill to solve the problem, using the federal courts where such an issue belongs. It certainly didn't involve NTSB, which has made a joke out its new found power. Read Hilary Miller's excellent article about it, "Hoover Dam." on AVWEB.

Unless one is wealthy, big contributor, a congressman, or has the time and resources to spend visiting congressional offices, it is virtually impossible, unless the problem generates substantial publicity, to get anything done without AOPA, EAA and other trade groups. Look at the case of the seven-year-old girl who was killed in Wyoming along with her father and flight instructor, while taking off into lousy weather so she wouldn't miss the deadline (her upcoming birthday) to claim to be the youngest to have flown an aircraft across the continental United States. Congressman John J. Duncan, Jr. (Rep. Tenn.), chairman of the Aviation Subcommittee, hurriedly introduced a bill banning such flights. It passed in a minute. What a farce. By that time those flights were the subject of such derision any adult putting a child through that would be laughed out of aviation. And I doubt such would do any good for the child's psyche. But it got Duncan got his name in the papers.

A big part of the problem is Congress, which columnist Tom Oliphant has perceptively described as a dysfunctional organization. Amen. Back in the early 1970s I read an article in the Washington Post that pointed out in detail why it was virtually impossible to get Congress to do anything unless it was pushed by some trade group. I learned the truth of this first hand from an aide to then Congressman Dan Glickman (Dem. Kansas), who was on the House Aviation Subcommittee. Neither his aide nor any other I've ever talked with has ever any had difficulty understanding the nature of the problems with enforcement. But he told me flatly that nothing could get done unless I could get AOPA behind the effort. Political Science 101: field lesson.

The core problem with AOPA is that it is now and from birth has always been a private organization over which the members have no direct control. While at FAA in 1967-68 I used to go and see Ralph Lovering and Doc Strickler, two great guys running the general aviation shop, such as it was. One day another FAA chap was there. AOPA was mentioned, and he sneered at it and said it was just a profit-making organization and didn't really represent its members. I took umbrage at the remark, but said nothing since I was in someone else's office. But I've come to see he was absolutely correct. You'll learn how ineffective the AOPA board of trustees is after you read my letter to them. Was any action taken? Did any of them contact me for more information? Of course not. AOPA will never be a responsible organization until the members have a say in who runs it. Does the organization publish a yearly financial statement for its member? Does anyone know how much Yodice and Boyer make? What their yearly expenses are? Yodice has used his AOPA position to build a lucrative law practice.

So one of the actions you need to take if you are an AOPA member, is to call, write, or e-mail Phil Boyer and tell him to get off his duff and do something about a truly tragic situation, and demand an explanation of why AOPA refuses to do anything, and whether he intends to correct that.? If not, why not? Get a list of the trustees and send them copies of your letter. If he doesn't agree to act, he should resign; Both Yodices should, in any event. Kathleen can hardly be expected to take actions that will sorely embarrass her father.

AN OPEN LETTER TO AOPA TRUSTEES

The attached article tells you that the FAA's certificate sanction system for air-safety violations is now and always has been a hoax; that this fact has been carefully and deliberately covered up for more than half a century; moreover that FAA is in wholesale violation of the Administrative Procedure Act for its failure to promulgate the most basic rules concerning how their enforcement program works (which is a major facet of the coverup).

It may seem startling, but it is simple fact that FAA has neither statute nor regulation that tells a pilot his license is at risk for violation of a safety rule. The reason for this is clear: keen awareness by a hard core of government aviation lawyers over the years that their certificate suspension and revocation system for violations has no basis in law.

I write to both ask and suggest that as an AOPA trustee you have a duty to your members to do something about this flagrant situation. And, make no mistake, in so doing you may well face a serious and likely unpleasant internal problem.

As long as two and a half years ago I spent an hour and a half with John Baker and John Yodice outlining the facts, most of which I was able to dig up while a consultant in 1980 to the U.S. General Accounting Office. Yodice, with whom I've had several recent extended conversations on the subject, does not deny the facts, even concedes that I am probably right.

It seems to me this puts AOPA in a rather awkward situation. You have just come out with a legal-fee insurance scheme, strictly limited to FAA certificate cases, a scheme that was carefully prepared during a time when your president and top operating legal officer had in their possession indisputable facts that showed the system they were insuring against had no legal basis, and that even if it did, it was vulnerable because any suspension or revocation action against an airman can be defeated under the Administrative Procedure Act on account of FAA's lack of rules. (Lack of statutory authority and lack of rules are two entirely different defenses.)

If AOPA does not now vigorously do something about this situation, at minimum educating the lawyers who participate in the insurance program about these defenses, it leaves itself open to severe criticism. Questions of ethics may be raised about lawyers (and I mean your president and Washington Counsel) should they fail to see that the utmost is done for their clients.

One of the most personable men I've ever met, I've known John Yodice for fifteen years. But I confess I do not understand him. I asked him bluntly whether as a lawyer he was not dedicated to the Rule of Law. He assured me that he was, yet virtually in the same breath allowed as how: 1) it did not bother him that FAA's certificate suspension and revocation program for violations might be--and probably was-illegal; 2) it did not bother him that FAA was in violation of the Administrative Procedure Act and that pilots had no statute or rule they could turn to that would tell them their licenses were at risk for violations; 3) he did not think the fact FAA deprives a pilot of his right to a jury trial to be a problem serious enough to be concerned about. (John argues nobody ever uses the right anyway. This argument won't wash. The essence of the problem is that FAA always puts the hard cases, where the pilot would likely demand jury, on the certificate track, rather than civil penalty track, where he has no chance to demand jury in any event!)

The main Baker/Yodice argument is that AOPA members are better off with a cheap NTSB one-man administrative law judge trial than going to federal court. I'm sure this is a consolation to the hundreds of commercial pilots (many of whom are AOPA members) who have their license suspended for 30, 60, 90, and yes, even 180 days, for violations where a money fine would be fair and humane, not to mention businessmen who use their aircraft as a convenient and effective mode of transportation.

This is one of those arguments that looks attractive on the surface, but is unsupportable: 1) As one attorney who is as much a specialist in FAA enforcement cases as anyone tn the country told me, he does not know a single pilot who would rather lose his license than pay a money fine; 2) regardless of the merits of this argument, AOPA is vulnerable because it has never educated its membership to the fact that 87% of all private and student pilot violations are handled by certificate action, 67% for general aviation overall, and asked them if they wanted to do anything about such an absurd situation. In any event. the argument has no relevance when the system Baker and Yodice opt for has no basis in law.

Several times now I have asked AOPA (meaning Baker and Yodice) for help to do something about this situation. Yodice frankly says he doesn't think AOPA should get involved.

Thus I turn to you as trustees for 260,000 members and ask that you take action. I think you will, as a matter of conscience and because it is right, and in the best interests of your members (how could it not be?). AOPA has a virtual monopoly on representation of private pilots and I think you would agree that if their total interests are to be fairly and honestly represented, it cannot be on an issue-selective basis. Roughly two thousand private pilots will have suspension actions brought against them this year, obviously many, if not most, will be AOPA members.

Of the dozens of pilots I've had contact with, the first question they always ask Is, what Is AOPA doing? When I say, "nothing," they ask why not? My answer: AOPA -- and ALPA, and all the rest -- has become a mirror-image bureaucracy to FAA, and really a sort of game is played between them with certain gentlemanly rules, and AOPA doesn't want to have to tell the other side it has been playing dirty--or tell the Emperor he wears no clothes--for fear of taking the fun out of the game.

It will cost you a few bucks, but the first thing you should do is hire outside counsel to try to tear my article to shreds (but make sure they meet with me personally to let me respond to doubts or questions), then when they confirm it, take it from there.

The problem isn't going to go away. My article has been accepted for publication by a law review; I have the perfect test case at hand with a private pilot (and AOPA member) which I am handling from its inception, so the issues I raise will for certain ultimately be considered by the appellate court after the NTSB tries to swallow them.

I am very fond of AOPA. My lapses in membership have nothing to do with my feelings about the organization. I joined tn 1950 and still have a clear mental picture of Max Karant personally briefing me as I was about to start out, with 105 hours under my belt, on a trip to Alaska in my Cessna 140, without doubt, the most exciting adventure of my life.

We all love aviation; we all believe in justice. But I have to say, with all the feeling at my command, that AOPA's present position In this matter is utterly reprehensible, and just not very wise.

LAWRENCE B. SMITH

SEPT. 19, 1983

Laurel, Maryland

* * * *

Further comment: -- In 1989 AOPA and other trade associations constituted themselves as as ad hoc General Aviation Regulatory Compliance Panel. The heat from airmen about FAA enforcement policies had been building. Yodice no doubt took a leading role. The panel advised FAA that "current enforcement policies are perfectly viable to achieve the FAA's goal of regulatory compliance. All that is needed is change of emphasis from what is perceived as heavy-handed formal enforcement actions to informed voluntary compliance." This statement, of course, is absolutely meaningless and has no relationship to reality.

I spent a lot of time writing a piece about this, but don't think I tried to get it published. It contained a detailed outline of how the system works, basically the same material you can read here in No Basis in Law, and Can They Take Your Ticket? But you might find this last portion of interest:

Gobbledegook The panel states: "Formal enforcement action should be undertaken by the FAA only when efforts to achieve regulatory compliance through knowledge and understanding have failed or when an alleged violator lacks the commitment to comply." This is meaningless gobbledegook.

What does "informed voluntary compliance" mean? Who would decide whether it was or was not? Enforcement can be "heavy-handed" because FAA officials have the power of life and death over airman or operator with the stroke of a pen.

These statements sound like they came right out of FAA's enforcement manual: "Civil penalty action may also be used in lieu of certificate action where a suspension is not necessary to obtain immediate corrective action. . . [and] where normally a suspension would be manifestly unfair or create an undue hardship and is not required for aviation safety." [18]

Are not these considerations the kind a judge makes, after the accused has been tried and convicted, and had an opportunity to present mitigating circumstances? A $1,000 fine might force one to borrow, but it doesn't destroy job or business. How can any rational system leave such power in the hands of the policeman? Where is any legislative history to support it? It doesn't exist.

Wiping the slate clean of past violations after a specified time is a good idea, but in the big picture, when 99% are first offenses, a minor matter. FAA has six decades worth of detailed violation statistics; all pilot violations should have a fixed money penalty and with it, for a violation history, a point accumulation scheme like auto traffic systems for suspension or revocation.

It is never necessary to shut down an entire air-taxi or commuter operation. Key company officials, like director of operations, chief pilot, etc., should hold formal licenses for those positions, then that license be at risk for violations under their purview, and they, not the business, suspended or revoked, and the company given a chance to replace them, if its necessary that they step down until cleared or found responsible by a due process hearing.

Operations and maintenance violations should be resolved by arbitration, with a panel of retired, genuine experts as arbitrators. The hearing should be conducted on the spot at the operator's hangar, not miles away in some courtroom. The penalty, a money fine.

Publish the petition The only way to get ideas such as these--and many others--before the public is for FAA officials to publish Smith's petition for rulemaking as an NPRM, and for DOT Secretary Skinner to appoint a blue-ribbon committee to consider it. The matter cannot be left to the same officials who are responsible in the first place for failing to tell the public how their enforcement program works. [The petition referred to is the one for a comprehensive rule, the summary, or text of which, you can read in this segment of the Web site.]

AIR LINE PILOTS ASSOCIATION

Shortly after my six-months consulting contract at GAO ended, I went to see Gary Green, ALPA general counsel. By that time ALPA had spent well over $100,000 in today's money, perhaps a great deal more, in legal fees trying to defeat license penalties in four cases: Wilson v. CAB (1957), Hard v. CAB (1957), and Pangburn v. CAB (1962). The fourth was in the mid-1970s but the court did not publish an opinion because of the three reported case precedents.

I spent 45 minutes with Green. Given ALPA's previous legal efforts I thought he'd be really interested in how vulnerable FAA was under the Administrative Procedure Act, and that he'd want to take advantage of it for his members. Turned out to be another John Yodice. Told me I obviously knew a great deal about FAA enforcement, thanked me for dropping by. That was it.

After reading the three case reports while at FAA, I always thought ALPA should have gone out and paid the legal fees for a private pilot who had committed some minor violation, so that court wouldn't have been so up tight about the alleged violation. Here's what those airline pilots did:

Wilson was captain of a TWA Lockheed Constellation, and while over Pittsburgh allegedly thumbed his nose at an ATC instruction.

Hard, an Eastern Airlines captain, made a rather unorthodox landing while approaching the Owensboro, Kentucky airport under IFR conditions. Likely flying a Martin 202, he was way off centerline and had to bank sharply to line up with the runway. Unfortunately he was a little low and hooked the right wing on the ground. The aircraft flipped, he landed upside down. Embarrassing for any airline pilot. Miraculously none of the 23 passengers sustained serious injury!

Pangburn was an American Airlines senior captain and held the prestigious post of supervisor of flying at Boston. On his approach to LaGuardia from the northeast, over the water, he unfortunately was a little low and left the landing gear of his Lockheed Electra at the approach end, having hit a dike. No doubt he was embarrassed as his aircraft turned into a giant sparkler screeching down the runway. Not to mention the fun ride for the passengers.

The fourth case involved a DC-9 that left a long swath of bent corn stalks in a field a mile or two from the airport to which it was making an approach. It didn't crash, and perhaps the farmer enjoyed some instant roasted ears. With a kerosene flavor!

Wilson got a 10-day suspension, Hard an emergency 4-month suspension, and Pangburn a 90-day suspension.

If a businessman flying his Beech Baron had done any of these things FAA inspectors and lawyers would have issued a much harsher suspension.

All these cases highlight the problem with having the CAB cum NTSB both determine the cause of the accident, and whether or not the pilot committed a violation. True, the hearing officers (later given the title of administrative law judge) were separate and apart from the accident investigation function, but any appeal from their decision would go right to the same five Board members who adopted the accident report. In fact, Pangburn raised this as a due process violation. As usual, like any legitimate constitutional law issue raised in connection with "air safety," it got nowhere.

To a great extent the negligence of ALPA lawyers is responsible for failing to knock out this unlawful system of penalties when they had a chance. In fact they had that chance in all four cases. This is covered in detail in Emperor, starting at page 68. I summarize. In preparing their reply brief to the Justice Department's response to the opening brief in Wilson -- the case that is the father of them all -- they failed to do something that today might well bring a malpractice lawsuit.

They did not carefully read the government's brief -- nor did the appeals court. But for this inexcusable negligence it is virtually certain the use of license penalties would have ended there. What was their goof? The government lawyers in their brief told them that their authority came from the Air Commerce Act of 1926. The ALPA lawyers were arguing about the Civil Aeronautics Act of 1938 and section 609. They focused on the fact that it didn't say anything about license suspension for safety violations, that only civil penalties with right to jury trial were in the act. All true, of course.

THEY NEVER PICKED UP ON THE FACT THAT THEY WERE ARGUING IN THE WRONG YEAR! That the government was in effect saying, "Hey, fellas, you better go back and study what happened in 1926, seminal year of federal regulation of aviation. They should have run to the law library and checked the legislative history of the 1926 Act. Section 609 did not exist in that Act, so there was no language about public interest or air safety for the court to hang its hat on. The government lawyers were very careful, they never claimed 1938 as the year of authorization, but larded their brief with a multitude of citations that had nothing to do with the core issue -- smoke and mirrors. They even stated there was no legislative history for violation suspensions, implying none for either year. True, there isn't. There would be if anyone had ever introduced a bill on the subject. The ALPA lawyers simply didn't pick up on that either.

It is incredible for anyone trained as a lawyer to believe that Congress would authorize something as drastic as license suspension as a penalty, and not hold hearings so the public could comment on what they thought about it. Hearings are what create legislative history.

In short, Wilson, the touchstone for all the rest up to this day, was based on a fundamental mistake of fact that renders it completely invalid. The only issue was whether Congress ever intended to authorize license penalties, and if the system began in 1926, then that is the year one must look at.

The case arose in the United States Court of Appeals for the District of Columbia Circuit. It is considered the flagship of appeals courts for legal issues arising under federal statutes. The Hard case was in process at the same time in the Seventh Circuit in Chicago. It is apparent from the record that the government lawyers took the Wilson slip opinion (type written to be published on the day when the decision is announced) up to Chicago to reinforce their arguments there. Its decision came down five months later.

I unhesitatingly call this act by those CAB and Justice Department lawyers a fraud on the American public, especially citizens holding airman certificates, then and now. Those lawyers knew full well that Wilson was based on a fundamental mistake of fact that rendered the decision invalid. It is basic to legal ethics that lawyers must level with courts and reveal that sort of knowledge. Instead they cited Wilson and stood silent. In my considerable experience, Justice Department and FAA lawyers have continued to this day to observe the same standard of legal ethics -- anything goes in defending the government, no matter how corrupt the actions of its officials are.

The ALPA lawyers continued right on with the same arguments in the next three cases, never taking off their blinders. It's always puzzled me as to why it never occurred to them to go back and study the history of federal regulation starting with 1926 to get the full picture on federal government involvement in aviation.

The United States courts of appeals must also share in the blame for what has been and is a continuing national tragedy.

ALLIED PILOTS ASSOCIATION

Allied Pilots is a union solely composed of American Airlines pilots. They split from ALPA back in the mid-sixties, and even flew when everyone else was on strike in 1966. I remember it because that strike helped put a few bucks in Pacific Lear Jet Sales Company's coffers, thanks to charters.

Back in the 1980s I called their headquarters and talked to a member of their legal staff. He was quite interested in my work, and what I revealed about the legal path that would put an end to license penalties. Told me he'd have to talk to the top union officers. Called me back and told me they were not interested. Said in effect that their attitude was that any airline pilot who got a violation probably deserved it, and whatever happened to him was what he deserved.

EXPERIMENTAL AIRCRAFT ASSOCIATION

In late 1980s I called Oshkosh to talk to Paul Poberezny, EAA founder, president, and general aviation icon. I was told he couldn't take the call because he was meeting in his office with an FAA official. No doubt about arrangements for the annual Oshkosh summer blast. That told me a great deal.

I'm proud to say that Duane Cole, EAA founder No. 8, is a strong supporter of my work. For the many who love him, he's doing splendidly at 87. He should have been No. 2. Duane just told me as I write this that Paul was flying Air Force transports in Korea when they first talked about creating the organization in the early 1950s.

Until I obtained the John Marsh statement in 1996 there was minimal contact with EAA. By then Paul was chairman, son Tom having moved up to president. I sent Paul the Marsh Whitepaper and a floppy disk of the entire statement. Followed that up with a call. He had me call Jack Harrington, EAA director, lawyer, and chairman of EAA's legal affairs committee. Told me how this senator and that congressman had come to the summer Oshkosh meeting and how much they enjoyed it, etc., etc. Finessed talking about whether the use of license penalties with neither statute nor rule to support them bothered his sense of right and wrong. The runaround.

NATIONAL AIR TRANSPORTATION ASSOCIATION

I quickly found out that NATA was no different than the rest. When I was called upon to defend Glacier Bay Airways in Gustavus, Alaska (see Summaries of Emergency Cases), I called NATA. Even though GBA was not a member, I thought NATA might score points with other air-taxis and attract new members by helping out in one way or the other. Like the rest, it was a dead end.

Fortunately my strategy of having GBA deliberately violate the emergency revocation order got them their certificate back. The FAA lawyers did exactly what I hoped they would. They immediately went to the U.S. Attorney in Anchorage and had a civil penalty suit filed. I had no trouble with that office setting up depositions of several FAA lawyers. Facing that would have been a catastrophe for them -- they would have had to tell the truth -- so they agreed to restore GBA's certificate. And we settled the civil case, and that was that.

NATIONAL BUSINESS AIRCRAFT ASSOCIATION

In the spring of 1995 I happened to be in Washington, D.C. for a couple of days, so I gave NBAA president John Olcott a call to see if he had any free time that day. He did, and I spent a half-hour with him and a couple of his associates. He was appreciative of what I was trying to do and sounded encouraging. Had AOPA and EAA started doing something about enforcement, NBAA would certainly have joined in. But nothing came out of the visit, and I lacked the resources to run back and forth to Washington.

CALIFORNIA PILOTS ASSOCIATION

There is an exception to every rule. Kudos to the 20,000-member California Pilots Association (formerly California Aviation Council), ably led after many, many years of service by its president Jay White, attorney and retired UAL B-747 captain. While the group's main focus is working to prevent loss of airports to urbanization, in 1989, under Jay's leadership, they got together 2,000 signatures on petitions to Congress, asking it to do something about FAA enforcement. Unfortunately they might as well have been dumped in the trash. I don't know that writing to your congressman will ever do any good, but we all have to keep trying. And there are other strategies that hold promise. We don't HAVE to be just sheep!

* * * * *