An Open Letter to Administrator Jane Garvey: The FAA's Top Lawyers Are Out of Control!

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EDITORIAL. A month-long investigation by AVweb has uncovered extremely disturbing evidence of misconduct bordering on abuse of power by at least three of the highest-ranking attorneys in the FAA. Specifically, AVweb has obtained an internal FAA staff report which reveals that these three top FAA lawyers continued to prosecute an enforcement action against an innocent aviation businessman for nearly a year after being informed that the FAA's own technical expert in Flight Standards had investigated the alleged violation and concluded that the complaint was entirely without merit and that no violation in fact occurred. In an open letter to Administrator Jane Garvey, AVweb editor Mike Busch presents the shocking details and suggests a solution to ensure such prosecutorial misbehavior doesn't happen again.


September 14, 1998

ATISMs. Jane F. Garvey, Administrator
Federal Aviation Administration
800 Independence Avenue, S.W.
Washington, D.C. 20591

Dear Administrator Garvey,

I enjoyed talking with you at Oshkosh '98 about several subjects of significant concern, including the proposed "ticketing" program, the Agency's policy change regarding dissemination of airman mailing addresses, and the FAA's unfortunate and misguided enforcement action against B&C Specialty Products (operated by Bill Bainbridge). You promised that you'd follow up on the first two of these matters, and I had the feeling that you really meant it.

As for the third matter — the FAA's two-year persecution of Bill Bainbridge in the face of overwhelming evidence that the man did nothing wrong — I'm sure that both of us sincerely hoped that the situation would be finally put to rest when, immediately after your public "Meet The Boss" session at Oshkosh, you and your Deputy Chief Counsel James Whitlow met with Bainbridge and handed him a letter withdrawing the FAA's groundless enforcement action against Bill's company, B&C Specialty Products. Regrettably, however, that letter did not resolve the matter.

For one thing, the letter you gave to Bill Bainbridge, signed by James Whitlow, was far more of a threat than the apology that Bill clearly deserved. While the letter did state that the FAA was withdrawing its enforcement action against B&C, it also made clear that the Agency's lawyers continued to believe that Bainbridge had violated and was continuing to violate the Federal Aviation Regulations (FARs) , and indicated that additional enforcement action against B&C was likely. I could tell that you were visibly upset when the actual contents of Whitlow's letter to Bainbridge was subsequently brought to your attention by Bainbridge and Tom Poberezny (president of EAA). I recently learned that Guy Gardner, FAA Associate Administrator for Regulation and Certification, sent a far more conciliatory letter in a clearly well-intentioned attempt to put this shameful two-year saga to bed. (Although for some reason, Gardner sent the letter to Tom Poberzny with a copy to Bill.)

A tale of misconduct by top FAA lawyers

However, an investigation by AVweb in recent weeks has revealed a much more serious side of the Bainbridge affair that has not yet been addressed (much less resolved) by the FAA, and that has far-reaching implications that extend well beyond the specifics of the B&C matter. In the course of our investigation, we've learned that there is a severe and systemic problem at the highest levels of the FAA — specifically in the office of the Chief Counsel — which virtually assures that injustices and abuses of power of the sort that happened in the B&C case will continue to recur. Apologizing to Bill Bainbridge is important, Ms. Administrator, but it's certainly not enough. It is of the utmost importance that you take steps to correct the FAA's structural problem so that other citizens are not victimized the way Bill Bainbridge was.

I know that it's not easy for anyone, even an FAA Administrator, to take on a systemic problem like this. You are an experienced and talented administrator and someone who seems to genuinely want to "do the right thing." On the other hand, the subtleties of the FARs must be just as difficult for you to decipher as they are for the rest of us who are required to comply with them. It's also daunting to make sense of exactly what all those tens of thousands of FAA employees in hundreds of FAA facilities are supposed to do. We both know that reading the FARs or the FAA organization chart is enough to give anyone a Maalox moment.

So I can appreciate how difficult it must be for you to sort out the legalities and technicalities of something as complex as the Bainbridge fiasco, and why you normally must depend on FAA lawyers to do that. But who can you depend on when you're trying to look into a problem that involves FAA lawyers?

Not to worry, Ms. Garvey. I'm from AVweb and I'm here to help you.

I'm serious. In the remainder of this letter, you'll find everything you need to know to fully understand what went wrong in the Bainbridge affair, why it went wrong, who was responsible, and how we can make sure something like this doesn't happen again.

How did Bainbridge get in trouble?

Bill and Celesta Bainbridge are salt-of-the-earth American citizens raising their kids in Newton, Kansas, and operating their little business (B&C Specialty Products) which builds the finest lightweight alternators available for homebuilt aircraft. These alternators are not FAA-approved, but since they're built for use on homebuilts, they don't have to be. B&C's sales literature and installation manuals for these units are prominently marked (in bold and all caps, in case someone has poor eyesight) with a notice that the alternators are unapproved and strictly intended for use on experimental aircraft.

A number of Super Cub operators up in Alaska discovered that these B&C alternators would work very well on their certificated aircraft. They found out about them by word-of-mouth (since B&C does not advertise outside the homebuilt community), and they obtained one-time field approvals from their local FAA Flight Standards District Office. This means that each individual alternator installation was individually approved by a local FAA Airworthiness Inspector by means of a FAA Form 337. All of this was done strictly by the book

Everything changed in the fall of 1996 when Chris LeMay, a Super Cub owner in Soldotna, Alaska, bought an L-40 alternator from B&C, and asked the Anchorage Flight Standards District Office (FSDO) to approve a Form 337 for the installation. An inspector named Walter Zakowitz inexplicably refused to sign the field approval, despite the fact that dozens of similar installations had been previously approved by the same FSDO. Maybe he got out of bed on the wrong side that morning. Who knows? Anyway, LeMay complained up the FAA chain of command, and six months later another inspector named Grant Chapman did sign the Form 337. That should have been the end of the story. But it wasn't.

It seems that someone in the Anchorage FSDO filed a complaint against B&C, accusing the firm of selling suspected unapproved parts — a real buzzword in the FAA these days, as you know, and guaranteed to get the attention of the Agency lawyers. We don't know who did this, but somehow the complaint wound up in the hands of FAA attorneys in the Central Region, and they initiated an enforcement action against B&C. Bainbridge learned about this when he received a notice dated June 24, 1997, and signed by John Curry, Assistant Chief Counsel for the FAA Central Region. The notice said that the FAA proposed to levy a $2,000 civil penalty against B&C for selling unapproved parts.

The FAA's enforcement action accused Bill Bainbridge of violating FAR 21.303(a). It was an absolutely preposterous accusation but to understand why, it's necessary to know a little about what that regulation says, and to understand a little bit about an FAA procedure known as a "one-time field approval" (FAA Form 337). I've covered these subjects in some detail in an attachment titled "PMA and Form 337 Backgrounder."

Bainbridge could have easily ended things right there by offering to settle (probably for a good deal less than $2,000) and agreeing not to sell any more alternators to customers who admitted to being Super Cub operators. But he knew he'd done nothing wrong, and the proposed fine understandably infuriated him. So two months after receiving the notice, Bill stood up in the "Meet The Boss" session at Oshkosh on August 2, 1997, and complained bitterly about how he was being mistreated by the FAA.

I'm sure you remember the occasion, Ms. Garvey, because you'd been FAA Administrator for all of 48 hours and undoubtedly hadn't the foggiest notion of what this middle-aged fellow wearing a checked shirt and red suspenders was ranting and raving about. But you promised Bainbridge that you'd look into it and, much to your credit, you did precisely that. In fact, you asked Guy Gardner (AVR-1), Associate Administrator for Regulation and Certification, to look into it.

Guy asked Tom Stuckey (AFS-1), Acting Director of Flight Standards to look into it.

Tom asked Leo Weston (AFS-300), Acting Manager of the Aircraft Maintenance Division to look into it.

Leo asked Gene Fowler (AFS-340), Manager of the General Aviation & Commercial Airworthiness Branch to look into it.

And Gene asked Bill O'Brien, his top expert on General Aviation maintenance matters, to look into it.

The O'Brien report

As it happens, Bill O'Brien was probably the perfect person to look into the Bainbridge affair. Bill is a long-time FAA career man who, from what I've been able to determine, seems universally admired and respected throughout both the Agency and the General Aviation maintenance community. Having paid his dues as a G.A. mechanic and FAA airworthiness inspector, and being still active in educating field mechanics and inspectors, O'Brien really knows his stuff, both regulation-wise and wrench-wise. I've talked with a number of people who know Bill quite well, and all characterized him as being an extremely knowledgeable and dedicated person who "does things by the book," is extremely loyal to the FAA, but is even more loyal to "doing what's right."

O'Brien started looking into the Bainbridge matter in early September, 1997. O'Brien collected the relevant documents, talked to the various people involved (Bainbridge, inspector Chapman, and various FAA subject matter experts), and by mid-September he'd drafted a concise three-page report. O'Brien's report reviewed the facts of the case, analyzed the FAA's allegation that B&C had violated FAR 21.303(a), and concluded that Bainbridge had not only done nothing wrong but had in fact gone out of his way to do everything right. At the end of his report, O'Brien offered his recommendation that the FAA Administrator (you) request General Counsel to withdraw the enforcement action against B&C Specialty Products.

I'm not certain whether or not O'Brien's staff report ever reached your desk, Ms. Garvey, but in case it didn't, I've attached a complete copy of the report. It's not very long and well worth your time to read.

When I read the report, it was obvious to me that O'Brien never meant it to be read by eyes outside of the FAA, because the report pulls no punches and some of it is extremely embarrassing to the Agency. In fact, one particular paragraph of the O'Brien report — the one I've come to call the "smoking gun" paragraph in the course of AVweb's investigation — is more than embarrassing to the FAA. It's downright shocking!

So how did AVweb come to read this report? Well, that's an interesting story in itself. It seems that someone in the FAA tipped off Bill Bainbridge that there was an internal FAA report that exonerated him, despite the fact that the FAA lawyers were still prosecuting an enforcement action against him. Bainbridge asked Senator Sam Brownback of Kansas to try to get a copy of the report for him. Brownback forwarded the request to the FAA. After months and months, Tom Stuckey (AFS-1), Acting Director of Flight Standards, sent Senator Brownback a copy of the O'Brien report, warts and all, in February, 1998. Senator Brownback's office dutifully passed it on to constituent Bill Bainbridge, and that's how my news staff and I came to read it.

The "smoking gun" paragraph

So there I was, reading this FAA staff report, and nodding "uh huh" at all O'Brien's conclusions in the "Analysis" section. Then I came to paragraph five, and the hair on the back of my neck stood on end. Let me save you the trouble of looking up that paragraph:

"5. On 9/15/97 I called Mr. John Curry of ACE-7, the lawyer who is handling this EIR [Enforcement Investigative Report] (97CE430010). He told me that this enforcement action was cleared at the highest levels in Washington (Carey Terasaki and Peter Lynch of AGC-200). I told him out of courtesy that I will recommend that the violation be dropped due to insufficient grounds to prove a violation of 21.303 occurred. He got upset and said that Flight Standards does not have the right to interpret the rules, only GC [the General Counsel's Office] does, and a complaint to the administrator at Oshkosh does not mean that the entire enforcement action should be in question. I again told him that this was a courtesy call and that it was my intent, based on my review, to recommend the violation be dropped. Mr. Curry said this matter should be settled in court because there was no existing court decision on the books. I said it would be a little tough on a small businessman to pay 20 to 30 thousand dollars in legal fees to find out he was right. Mr. Curry said that's how the system works. I ended the conversation politely."

Holy mackerel! Here's one of the most senior attorneys in the FAA (Curry) who insists on throwing the full weight of the FAA's enforcement machinery at a citizen who he knows is hardly in a financial position to defend himself (not to mention that he's done nothing wrong according to the FAA's own subject matter expert). Why? Because this lawyer wants to litigate a "test case" in the unapproved parts area!

When the FAA's top technical expert from Headquarters explains that — after reviewing the case thoroughly at the request of the Administrator — he has concluded that no violation occurred, the FAA lawyer gets angry and says in effect "this is none of your business, only lawyers are qualified to judge whether or not a violation occurred."

Can you believe a top-ranking FAA lawyer like John Curry would be foolish enough to say something like that (even if he felt that way) to someone like O'Brien in FAA Headquarters who Curry knew had been specifically tasked with looking into this matter and reporting back to the Administrator?

Who are these FAA lawyers?

But this revelation seems even more incredible when you consider that the arrogant and abusive attitude expressed by Curry was not just his alone, but was apparently "cleared at the highest levels in Washington" (in Curry's words) by Carey Terasaki and Peter Lynch. Do you know who those "gentlemen" are, Ms. Garvey? I didn't until I looked them up. They're definitely not flunkies or loose cannons, I can assure you. They're some of the most powerful people in the Agency:

  • Peter J. Lynch (AGC-300) is Assistant Chief Counsel, Enforcement Division. This means that he's the FAA's top prosecutor...in essence, the Agency's "District Attorney." Lynch reports directly to Deputy Chief Counsel James Whitlow.

  • Carey W. Terasaki (AGC-210) is Manager of the Airworthiness Law Branch. Terasaki reports to Donald P. Byrne (AGC-200), Assistant Chief Counsel, Regulations Division, who in turn reports to Whitlow. Byrne is the FAA's top "language lawyer" in charge of drafting, maintaining, and interpreting the FARs. Carey Terasaki heads the branch of Byrne's division concerned with the portion of the FARs dealing with airworthiness (FAR 21, 23, 25, etc.).

  • John Curry (ACE-7) is, as I've already pointed out, the most senior attorney in the FAA's Central Region. Administratively, he reports to the Regional Administrator (ACE-1). Professionally, he reports directly to Whitlow.

So what do we have here? The FAA's top prosecutor, the principal architect of the airworthiness FARs, and the top lawyer in the Central Region all ganging up on Bill Bainbridge, a citizen and small businessman who (according to your own top technical expert) has done nothing wrong and everything right. Why? So they can have a "test case" of a paragraph of the FARs that — while it certainly seems straightforward enough to me — is apparently considered sufficiently ambiguous by the FAA's lawyers that they and the FAA's own cops (Flight Standards) can't agree on what it means!

Now I'm not a lawyer, but FAR 21.303(a) seems like a pretty simple regulation to me. It says that if I'm making parts for certificated aircraft, I need the FAA's blessing (a PMA). If I'm making parts for homebuilts, I don't. Bainbridge was clearly making the L-40 for homebuilts. His literature and documentation stated clearly and unequivocally that these were unapproved parts intended for use only on experimental aircraft. A number of Super Cub owners in Alaska liked Bill's products and (strictly on their own initiative) installed them on their airplanes via the Form 337 process, each installation individually approved by an FAA inspector. In some cases, customers who purchased Bill's alternators asked for copies of previously-approved Form 337s to provide to their local FSDO inspectors, and since those are public documents, Bill was happy to accomodate them. All of this was perfectly safe and perfectly legal, strictly by the book. That's obvious to me, obvious to Bill O'Brien, and hopefully obvious to anyone else who looks at it with objectivity and common sense.

So why wasn't it obvious to these three top FAA lawyers? For one thing, it's pretty clear that they never took the trouble to investigate the situation the way Bill O'Brien did. It doesn't take a rocket scientist to figure out that Bainbridge was playing strictly by the book. But these lawyers thought they smelled the scent of an "unapproved parts" case, and decided to go for the jugular and carve another notch in their respective gun butts.

Of course, that's what prosecutors do. But given the huge disparity between the FAA's power to prosecute and the ability of a small businessman like Bainbridge to defend himself, don't you think that it's absolutely essential for the FAA to exercise its "prosecutorial discretion" in cases like this one where there's no real evidence of wrongdoing and no apparent threat to safety? If the FAA's own cops (Flight Standards) say "this guy is innocent," how can the FAA's prosecutors (Enforcement Division of AGC) say "we're going to prosecute him anyway" and get away with it for nearly a year?

That's the way the system works?

When O'Brien made his post-investigation courtesy call to Curry, Curry told O'Brien that the FAA's top legal talent had already made up its collective mind...please don't confuse us with the facts. When O'Brien pointed out that Bainbridge was innocent and hardly in a financial position to defend himself against the awesome legal might of the FAA, Curry said flippantly, "that's the way the system works."

That's the really scary part, Ms. Garvey. That apparently IS the way the system works once it gets out of the hands of the technical experts (Flight Standards in this case) and into the hands of the FAA lawyers.

We recently discussed this matter with Tony Broderick, who served for many years in the Associate Administrator role that Guy Gardner holds now (i.e., FAA's top cop). Broderick told us, "in order to waive prosecution, you had better catch the case before it goes to the lawyers in FAA. They are very independent of the technical people, and in fact stopping a case which the lawyers believe is a violation is a very tough thing to do. I only did that a very few times in my career."

Of course, Bainbridge didn't even know that the FAA was after him until it went to the lawyers.

How could this happen?

The enforcement action against Bainbridge may have been withdrawn (at least for now), but the high-ranking FAA attorneys who were anxious to throw an innocent citizen to the wolves just to test one of their precious paragraphs in court still hold their powerful jobs and their attack-dog attitudes. Until this callous attitude that apparently pervades the Office of the General Counsel is changed, the matter can hardly be considered resolved.

When we spoke recently with Bill O'Brien, he pointed out that every FAA employee takes an oath to defend the Constitution of the United States. "That Constitution begins with 'We the People'," O'Brien told AVweb. "I work for the people."

It's hard not to wonder whether or not Messrs. Curry, Lynch and Terasaki called in sick the day that oath was to be administered. It sounds like someone needs to explain to them and their colleagues in the General Counsel's Office whom it is they work for. They're obviously not very good listeners, but they might listen to you.

And while you're talking to your top lawyers, there are a few more questions you might consider asking them:

  • Carey Terasaki (AGC-210): As the FAA's top architect of the FARs that deal with airworthiness, why don't you understand what has been the FAA's policy concerning one-time field approvals via Form 337 for the past 20 years, and its overall excellent safety record and effectiveness in promoting safety improvements at an affordable cost? Or if you do understand the policy and simply disagree with it, why don't you propose an amendment to the FARs or perhaps draft a proposed Advisory Circular to promulgate the FAA's new policy on this matter? Is taking an innocent small businessman to court really the appropriate way to modify or clarify FAA policy?

  • Peter Lynch (AGC-300): As the FAA's top prosecuting attorney, why didn't you exercise your prosecutorial discretion to call off the prosecution of what the FAA's own designated technical expert on General Aviation airworthiness (Bill O'Brien) concluded was a case-without-merit against an innocent citizen who played everything strictly by the book? If we can't look to you to exercise such discretion, who can we look to? Of all the "unapproved parts" cases being prosecuted by your Enforcement Division, why on earth pick this one to take to court, especially over the objections of your Agency's own technical experts? If you really need a test case, couldn't you have picked one that involved a genuinely guilty party and a geniune threat to safety?

  • John Curry (ACE-7): As the FAA's top lawyer in the Central Region and one of the most senior attorneys in the entire Agency, how can you possibly justify your position in this matter? Do you truly believe what you told Bill O'Brien when you said, "that's the way the system works?" If you do, isn't it high time that either you try to change the system, or step aside so that another lawyer with a more constructive attitude can do so?

  • James Whitlow (AGC-2): These guys all report to you. If they didn't have the good judgement to do the right thing, why didn't you step in immediately and set them straight? If you didn't know what they were up to, why not? If you can't keep your top attorneys under control, who will? And, how could you — in all good conscience — deliver a so-called withdrawal letter on behalf of your Administrator that was nothing more than a not-so-thinly-veiled threat to continue persecuting this innocent citizen?

I urge you to ask these questions, Ms. Garvey. If you don't get the right answers, I respectfully suggest that it might be time to consider some remedial training for these folks.

Who will protect us from the FAA lawyers?

Sadly, I fear it may be impossible to totally eradicate this sort of attitude on the part of FAA lawyers. Most of the other key decision makers in the FAA came up through the aviation ranks as pilots, mechanics, controllers or aviation businesspeople, so they can identify with the people whom they are tasked to regulate. On the other hand, most FAA lawyers aren't ex-airmen, and so perhaps it shouldn't be surprising that they have far more allegiance to the Regulations than they do to the people being regulated.

It's a sad fact that criminals in this country have far more rights and protections from persecution and abuse than do the targets of FAA enforcement actions. While this may be perfectly legal, it is morally indefensible. As the first FAA Administrator with the assurance of a five-year minimum term of office, you have a unique opportunity to make changes within your Agency that could truly help assure that citizens are afforded reasonable protection against unfounded, unjust or vindictive prosecution by FAA lawyers.

To that end, I would strongly urge you to create an "Ombudsman Office" to which a citizen can turn if he believes he's being unfairly prosecuted by the FAA. This new function should report directly to the Office of Administrator, and should be staffed by senior people who have substantial aviation expertise and impeccable reputations for fairness, and who are respected both inside and outside the Agency. This office would be empowered to accept complaints from citizens who believe they are being unfairly prosecuted, screen those complaints and select those that appear to have merit, convene a panel to review potentially valid complaints, and correct injustices when they are found to exist.

Such "courts of last resort" or "courts of equity" presently exist in the military services and certain Federal agencies. These panels are normally composed of a combination of technical subject matter experts, in-house lawyers and outside attorneys, and typically chaired by someone who is not a lawyer. They have proven to be effective in protecting the rights of the governed without unduly hampering legitimate prosecutions.

Instituting such a function within the FAA would go a long way toward preventing the sort of injustice that occurred in the Bill Bainbridge case, and would help eliminate the deep mistrust of FAA attorneys that currently exists within the aviation community. I hope you will give consideration to this idea.

Thank you for listening.

Best regards,
Michael D. Busch
Mike Busch
Editor-in-Chief
AVweb


Mike Busch is editor-in-chief of AVweb.

If you'd like to express your thoughts about this editorial, here are some email addresses and FAX numbers you might find handy:

Name

Locator

Email

FAX

Jane F. Garvey AOA-1 Jane_Garvey@hq.faa.gov 202-267-5047
William F. O'Brien AFS-340 William_O'Brien@hq.faa.gov 202-267-5115
James W. Whitlow AGC-2 James_Whitlow@hq.faa.gov 202-267-3227
John C. Curry ACE-7 John_Curry@admin.tc.faa.gov 816-426-3272
Donald P. Byrne AGC-200 Don_Byrne@hq.faa.gov 202-267-3227
Carey W. Terasaki AGC-210 Carey_Terasaki@hq.faa.gov 202-267-3227
Peter J. Lynch AGC-300 Peter_Lynch@hq.faa.gov 202-267-3227

If you do write, please be sure to copy AVweb editor Mike Busch (mbusch@avweb.com). Thanks!