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

September 14, 1998

Ms. 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 significantconcern, including the proposed "ticketing" program, the Agency's policy changeregarding dissemination of airman mailing addresses, and the FAA's unfortunate andmisguided enforcement action against B&C Specialty Products (operated by BillBainbridge). You promised that you'd follow up on the first two of these matters, and Ihad the feeling that you really meant it.

As for the third matter — the FAA's two-year persecution of Bill Bainbridge in theface of overwhelming evidence that the man did nothing wrong — I'm sure that both of ussincerely hoped that the situation would be finally put to rest when, immediately afteryour public "Meet The Boss" session at Oshkosh, you and your Deputy ChiefCounsel James Whitlow met with Bainbridge and handed him a letter withdrawing the FAA'sgroundless 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 farmore of a threat than the apology that Bill clearly deserved. While the letter did statethat the FAA was withdrawing its enforcement action against B&C, it also made clearthat the Agency's lawyers continued to believe that Bainbridge had violated and wascontinuing to violate the Federal Aviation Regulations (FARs) , and indicated thatadditional enforcement action against B&C was likely. I could tell that you werevisibly upset when the actual contents of Whitlow's letter to Bainbridge was subsequentlybrought to your attention by Bainbridge and Tom Poberezny (president of EAA). I recentlylearned that Guy Gardner, FAA Associate Administrator for Regulation and Certification,sent a far more conciliatory letter in a clearly well-intentioned attempt to put thisshameful two-year saga to bed. (Although for some reason, Gardner sent the letter to TomPoberzny with a copy to Bill.)

However, an investigation by AVweb in recent weeks has revealed a much moreserious 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 specificsof the B&C matter. In the course of our investigation, we've learned that there is asevere and systemic problem at the highest levels of the FAA — specifically in the officeof the Chief Counsel — which virtually assures that injustices and abuses of power of thesort that happened in the B&C case will continue to recur. Apologizing to BillBainbridge is important, Ms. Administrator, but it's certainly not enough. It is of theutmost importance that you take steps to correct the FAA's structural problem so thatother 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 systemicproblem like this. You are an experienced and talented administrator and someone who seemsto genuinely want to "do the right thing." On the other hand, the subtleties ofthe FARs must be just as difficult for you to decipher as they are for the rest of us whoare required to comply with them. It's also daunting to make sense of exactly what allthose 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 anyonea Maalox moment.

So I can appreciate how difficult it must be for you to sort out the legalities andtechnicalities of something as complex as the Bainbridge fiasco, and why you normally mustdepend on FAA lawyers to do that. But who can you depend on when you're trying to lookinto 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 knowto fully understand what went wrong in the Bainbridge affair, why it wentwrong, who was responsible, and how we can make sure something like thisdoesn't happen again.

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

A number of Super Cub operators up in Alaska discovered that these B&C alternatorswould work very well on their certificated aircraft. They found out about them byword-of-mouth (since B&C does not advertise outside the homebuilt community), and theyobtained one-time field approvals from their local FAA Flight Standards District Office.This means that each individual alternator installation was individually approved by alocal FAA Airworthiness Inspector by means of a FAA Form 337. All of this was donestrictly 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 StandardsDistrict Office (FSDO) to approve a Form 337 for the installation. An inspector namedWalter Zakowitz inexplicably refused to sign the field approval, despite the fact thatdozens of similar installations had been previously approved by the same FSDO. Maybe hegot out of bed on the wrong side that morning. Who knows? Anyway, LeMay complained up theFAA chain of command, and six months later another inspector named Grant Chapman did signthe 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, accusingthe 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 whodid this, but somehow the complaint wound up in the hands of FAA attorneys in the CentralRegion, and they initiated an enforcement action against B&C. Bainbridge learned aboutthis when he received a notice dated June 24, 1997, and signed by John Curry, AssistantChief 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 wasan absolutely preposterous accusation but to understand why, it's necessary to know alittle about what that regulation says, and to understand a little bit about an FAAprocedure known as a "one-time field approval" (FAA Form 337). I've coveredthese 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 (probablyfor a good deal less than $2,000) and agreeing not to sell any more alternators tocustomers 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 thenotice, 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 Administratorfor all of 48 hours and undoubtedly hadn't the foggiest notion of what this middle-agedfellow wearing a checked shirt and red suspenders was ranting and raving about. But youpromised Bainbridge that you'd look into it and, much to your credit, you did preciselythat. In fact, you asked Guy Gardner (AVR-1), Associate Administrator for Regulation andCertification, 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 tolook into it.

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

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

As it happens, Bill O'Brien was probably the perfect person to look into the Bainbridgeaffair. 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 GeneralAviation maintenance community. Having paid his dues as a G.A. mechanic and FAAairworthiness inspector, and being still active in educating field mechanics andinspectors, O'Brien really knows his stuff, both regulation-wise and wrench-wise. I'vetalked with a number of people who know Bill quite well, and all characterized him asbeing an extremely knowledgeable and dedicated person who "does things by thebook," is extremely loyal to the FAA, but is even more loyal to "doing what'sright."

O'Brien started looking into the Bainbridge matter in early September, 1997. O'Briencollected the relevant documents, talked to the various people involved (Bainbridge,inspector Chapman, and various FAA subject matter experts), and by mid-September he'ddrafted 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 thatBainbridge had not only done nothing wrong but had in fact gone out of his way to doeverything right. At the end of his report, O'Brien offered his recommendation that theFAA Administrator (you) request General Counsel to withdraw the enforcement action againstB&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 completecopy 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 byeyes outside of the FAA, because the report pulls no punches and some of it is extremelyembarrassing to the Agency. In fact, one particular paragraph of the O'Brien report — theone I've come to call the "smoking gun" paragraph in the course of AVweb'sinvestigation — 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 initself. It seems that someone in the FAA tipped off Bill Bainbridge that there was aninternal FAA report that exonerated him, despite the fact that the FAA lawyers were stillprosecuting an enforcement action against him. Bainbridge asked Senator Sam Brownback ofKansas to try to get a copy of the report for him. Brownback forwarded the request to theFAA. 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, andthat's how my news staff and I came to read it.

So there I was, reading this FAA staff report, and nodding "uh huh" at allO'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 lookingup that paragraph:

Holy mackerel! Here's one of the most senior attorneys in the FAA (Curry) who insistson throwing the full weight of the FAA's enforcement machinery at a citizen who he knowsis hardly in a financial position to defend himself (not to mention that he's done nothingwrong according to the FAA's own subject matter expert). Why? Because this lawyer wants tolitigate a "test case" in the unapproved parts area!

When the FAA's top technical expert from Headquarters explains that — after reviewingthe case thoroughly at the request of the Administrator — he has concluded that noviolation occurred, the FAA lawyer gets angry and says in effect "this is none ofyour business, only lawyers are qualified to judge whether or not a violationoccurred."

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

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

So what do we have here? The FAA's top prosecutor, the principal architect of theairworthiness FARs, and the top lawyer in the Central Region all ganging up on BillBainbridge, a citizen and small businessman who (according to your own top technicalexpert) has done nothing wrong and everything right. Why? So they can have a "testcase" of a paragraph of the FARs that — while it certainly seems straightforwardenough to me — is apparently considered sufficiently ambiguous by the FAA's lawyers thatthey 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. Itsays that if I'm making parts for certificated aircraft, I need the FAA's blessing (aPMA). If I'm making parts for homebuilts, I don't. Bainbridge was clearly making the L-40for homebuilts. His literature and documentation stated clearly and unequivocally thatthese were unapproved parts intended for use only on experimental aircraft. A number ofSuper 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 individuallyapproved by an FAA inspector. In some cases, customers who purchased Bill's alternatorsasked for copies of previously-approved Form 337s to provide to their local FSDOinspectors, and since those are public documents, Bill was happy to accomodate them. Allof this was perfectly safe and perfectly legal, strictly by the book. That's obvious tome, obvious to Bill O'Brien, and hopefully obvious to anyone else who looks at it withobjectivity and common sense.

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

Of course, that's what prosecutors do. But given the huge disparity between the FAA'spower to prosecute and the ability of a small businessman like Bainbridge to defendhimself, 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 evidenceof 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 Divisionof AGC) say "we're going to prosecute him anyway" and get away with it fornearly a year?

When O'Brien made his post-investigation courtesy call to Curry, Curry told O'Brienthat the FAA's top legal talent had already made up its collective mind...please don'tconfuse us with the facts. When O'Brien pointed out that Bainbridge was innocent andhardly in a financial position to defend himself against the awesome legal might of theFAA, Curry said flippantly, "that's the way the system works."

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

We recently discussed this matter with Tony Broderick, who served for many years in theAssociate Administrator role that Guy Gardner holds now (i.e., FAA's top cop). Brodericktold us, "in order to waive prosecution, you had better catch the case before it goesto the lawyers in FAA. They are very independent of the technical people, and in factstopping a case which the lawyers believe is a violation is a very tough thing to do. Ionly 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 thelawyers.

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 thewolves just to test one of their precious paragraphs in court still hold their powerfuljobs and their attack-dog attitudes. Until this callous attitude that apparently pervadesthe Office of the General Counsel is changed, the matter can hardly be consideredresolved.

When we spoke recently with Bill O'Brien, he pointed out that every FAA employee takesan oath to defend the Constitution of the United States. "That Constitution beginswith '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 sickthe day that oath was to be administered. It sounds like someone needs to explain to themand their colleagues in the General Counsel's Office whom it is they work for. They'reobviously 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 mightconsider asking them:

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

Sadly, I fear it may be impossible to totally eradicate this sort of attitude on thepart of FAA lawyers. Most of the other key decision makers in the FAA came up through theaviation ranks as pilots, mechanics, controllers or aviation businesspeople, so they canidentify with the people whom they are tasked to regulate. On the other hand, most FAAlawyers aren't ex-airmen, and so perhaps it shouldn't be surprising that they have farmore 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 protectionsfrom persecution and abuse than do the targets of FAA enforcement actions. While this maybe perfectly legal, it is morally indefensible. As the first FAA Administrator with theassurance of a five-year minimum term of office, you have a unique opportunity to makechanges within your Agency that could truly help assure that citizens are affordedreasonable protection against unfounded, unjust or vindictive prosecution by FAA lawyers.

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

Such "courts of last resort" or "courts of equity" presently existin the military services and certain Federal agencies. These panels are normally composedof a combination of technical subject matter experts, in-house lawyers and outsideattorneys, and typically chaired by someone who is not a lawyer. They have provento be effective in protecting the rights of the governed without unduly hamperinglegitimate prosecutions.

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

Thank you for listening.

Best regards,

Mike Busch
Editor-in-Chief
AVweb

Mike Busch iseditor-in-chief of AVweb.

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