Pilot Wins, FAA Loses

The NTSB appeal is over and FAA lost. I now have my new certificate, with gliderrating, in my wallet. There will be no further appeal. I won.

That is the end of the story. But in the past nine months I've learned some things thatmight help the next pilot deal with the feds. On one level this is a story very differentfrom those of Mike Taylor orHowardFried. On another level the story is the same, only the ending is changed.

Basically, the facts are these: After 30+ years of power flying, I qualified for anaero-tow glider rating last Christmas. The training package was my Christmas gift fromwife Patsy. We spent the holiday with good friends Phil and Marge Hodge who had justcompleted their own landing strip in eastern Tennessee. All four of us are pilots, plusMarge has a couple of Pat's horses so we have a lot in common, and on top of that Phil andI got our glider training. It was a great trip.

After passing the checkride at Chilhowee Gliderport on December27 1996, I filled out certificate application form 8710-1, which specifically states"FAA policy requires that you use your permanent mailing address." My addressis:

I've lived there for years, have no plans to move, and that is the address I used. Perthe usual practice, I surrendered my pilot certificate and received a temporary, good for120 days.

In February, the FAA Airmen Certification Branch in OKC bounced the application. Theywanted a map of how to find my residence. They cited Action Notice 8700.2, whichstates that FAA must get a map from anyone who has a rural address. I did some checkingand couldn't find any requirement in the regulations for a map. So I refused...and thebattle was on.

My 120 day temporary certificate expired, and for a while I couldn't fly at all, eventhough there was no allegation that I had committed any infraction or violation.

I filed an appeal — they call it a "petition" in the case of certificatedenial — with NTSB (docket CD-33), and Friday, September 5, a hearing was held beforeAdministrative Law Judge Mullins in Oklahoma City.

FAA attorney Joseph Standell made the perfunctory motion for summary judgment. I arguedto the contrary. We each made our opening statements. Since I was the appealing party, Iwent first. I had subpoenaed quite a bit of material from FAA, and had my ducks in a row.

Fortunately, there is a burden on the appellant (me) to show that FAA actions are"arbitrary, capricious, or otherwise not in accord with law". This is great,because it opens the door to demonstrating all sorts of FAA actions that fall in thatcategory. I was prepared to show that the Orders (such as 8700.1, 8710.3C, 8610.4F,8400.1, and others) are illegal. Plus a lot more.

I began to enter items into evidence. I hadn't even called my first witness (the twowitnesses I had subpoenaed were both FAA employees at Airmen Certification Branch), when theFAA attorney suddenly announced that I could have my certificate. Bam! It was all over.All the work I had gone through to prepare myself for the hearing, all the evidence I hadamassed, all the adrenalin I had flowing...it didn't matter, it was all over. I had won.

The very interesting thing was watching the FAA attorney. His most importantobjective was to see that my evidence did not make it into the record. The FAA is farmore interested in covering up their mistakes than they are in justice. To say nothing ofaviation safety.

Briefly, here is some of what I was going to demonstrate to the court:

So, fellow pilots, when the FSDO or the examiner says you have to do it because it's inthe book, there is a good chance he or she is wrong. You don't have to do it unless theregulations require it, or unless there is a law that says you gotta do it.

But I've gotten ahead of my story again.

At Sun 'n Fun in April, I spent half a day at the FAA building trying to resolve thematter, getting handed from person to person and becoming more and more frustrated. I wastold that the map requirement was in the FARs. When I asked to see the regulation, thelady searched and finally announced that it wasn't in the regulations, but was in"our (FAA's) laws". I informed her that the FAA doesn't make laws, but shecouldn't comprehend the distinction. When I asked to see the map requirement in whateverform it was in, no one could produce that either. I ended up dealing with Mr. Jim Riddlefrom FAA Hq. in Washington. He tried to be helpful, but wasn't.

The only thing I learned for sure at Sun 'n Fun is that there is no shortage of moneyat FAA. You should see that plush second-story conference room they have. Great place towatch the airshow! Of course it's empty and unused the other 51 weeks a year . As I satthere looking out at the flightline, I was thinking how nice it would be if FAA FlightService Stations were allowed to have windows so they could see the airplanes. And theweather.

Ah, but I'm digressing again...

I began to do my homework. According to FAA, the reason they needed a map of how tofind my rural residence was Public Law 100-690. One thing I learned is that P.L. 100-690has almost nothing to do with FAA. Here are some random items from that 1988 law:

You get the idea. But it gets worse. When I began doing my homework on Public Law100-690, I wanted to read it. What I just quoted above is from a summary, it's not fromthe law itself. I checked with several law libraries and couldn't find a copy of thecomplete law. Not on paper, not on microfilm, not on computer. I really wanted the entiretome so I could hold it up in court, and so I could compare the part the FAA quoted withthe part they didn't quote.

When I got desperate, I called my congressman's office, I know one of the guys there.He went to work on the problem, and learned that when these large bills are passed intolaw, there are only three copies physically printed:

So much for the "public" in Public Law. But the more you think about it, themore it stinks.

Suppose we had a Senator who was a strong friend of aviation, and suppose he wanted tokeep the DEA under control and try to maintain freedom for American citizens who had donenothing wrong. He would have to vote against the "Federal Aviation AdministrationDrug Enforcement Assistance Act of 1988". With a title like that, he would be accusedat the next election of voting in favor of drugs. Digging deeper, his opponent could showthat the Senator had voted in favor of kidnapping and porn. (And against truck flares andHawaiian healers, too!) What's a poor Senator to do?

I never did get a copy of the actual law.

But I did find out that the law required FAA to give special attention to pilotcertificate applications that use a mailing address that is a post office box or a maildrop. Nothing about rural routes. I vowed to continue the fight.

In a letter from Mr. Harold Everett, manager of FAA Airmen Certification Branch in OKCwritten April 24, Mr. Everett said "You may contact the FSDO for another temporarycertificate if necessary."

Much later, when I subpoenaed my files, I found that on the very next day, April 251997, the same Mr. Everett sent FAA Form 8060-31(2-91) to the FSDO. The form has a seriesof boxes that can be checked to make something happen. In this case it's Item 9"Please provide new temporary certificate to airman and include copy with file".

The box was not checked.

One day this FAA official tells me that I can have a temporary certificate if I ask theFSDO, and the very next day he sends a form to the FSDO indicating that they should notissue it. Thanks, Mr. Everett!

When I called the Nashville FSDO (the district where I had taken the exam andsurrendered my certificate), the inspector said that I would have to contact my localFSDO. I did, and was told that they had no paperwork on the matter, and I should contactAirmen Certification Branch (the same Mr. Everett). Round and round we went.

There had been an earlier copy of the same form sent to the FSDO back in February, inthat case the box wasn't checked either. But I didn't know anything about it because theydon't supply a copy of 8060-31 to the applicant. Perhaps it would spoil their game.

FAA procedures clearly state that if a certificate application is denied, a certainform will be sent to the applicant. That form gives the applicant the procedures forappeal, and contains a denial number which will become part of the appeal. In my case, FAAclaimed that my application had not been "denied", it had merely been delayeduntil I provided them with a map. I got the word loud and clear from Ms. Mary Rickey, whoworks for Mr. Everett. In a phone call she stated "If you give us the map you willget your certificate and if you don't you won't." Period.

I requested a denial notice but FAA would not provide one, which complicated mypetition for review.

Time went by. I called various FAA officials. I talked with FAA lawyers in DC. They hadnever heard of any requirement for a map. I talked with NTSB lawyers, they had never heardof one either. This was getting curiouser and curiouser.

Then I found a copy of the Federal Register for April 4, 1997. It's about the rewriteof Part 61, and in the lengthy text that explains each change I found some goodammunition. "...61.29..has been revised to incorporate current policy, which is notto accept a post office box as part of a permanent mailing address." YES! TheFAA rulemongers clearly stated in writing that current FAA policy involves post officeboxes. Not a word about rural routes! A few pages later it got even better. The discussionabout 61.35 gets directly to the point and talks about Public Law 100-690. Now we'regetting somewhere. Again, the requirement is only for post office boxes. Nothing aboutrural routes.

Is any of this important to you, dear reader?

I believe it is. Not because you might someday live on a rural route or might rent apost office box. Not even because it demonstrates how screwed up the FAA is. This isimportant because sooner or later you will be in the position of fighting for your pilotcertificate, or fighting for your medical, or fighting a huge fine or other penalty.

If you are going to win, you will have to do your homework. So a story of howanother guy did his homework should give you some idea of how to go about saving yourticket when the time comes. We've read a lot about the pilots who became ensnared in FAA'slegal games and lost. If you are going to do better than they did, it's important tocompare techniques that lead to success with techniques that lead to failure.

I wrote NTSB and requested information on filing an appeal. They sent a fat packagecontaining the laws and rules, together with lots of useful information including samplefilled out forms and such. Really a good do-it-yourself kit.

So I filed an appeal (it's called a "petition" in the case of a certificatedenial). A docket number was assigned, #CD-33. That's interesting. The "CD" isfor Certificate Denial, and 33 is a sequential number beginning in 1958. Just think, in39 years there have only been 33 pilots, including me, who have fought back. Less thanone per year. Why is that?

Then I began in earnest to prepare for the hearing. I subpoenaed my airman file, andeverything that FAA might use against my position in this matter. I got copies of therelevant FAA forms and orders. There are more than 1400 currently active FAA orders. Someare a few pages, some weigh many pounds. They should all be available online or on CDROM,it would make research incredibly easier, but less than a half dozen of the 1400 areaccessible electronically. That's a shame.

I went to the post office and interviewed the postmaster, and came away with somematerial that was helpful. It never hurts in a federal matter to have evidence fromanother federal agency. I took photos of post office boxes (they probably thought I wascrazy) and I took photos of my rural mailbox. Fact is, the old mailbox was beginning tolook a little worn, so I installed a shiny new one for the occasion.

About ten days before the hearing I received a phone call from the FAA attorney'soffice. The lady said (this is a direct quote, I wrote it down as she said it) "Wehave the materials put together that you subpoenaed, but we can't FedEx to a post officebox"! Clearly the FAA still didn't have a clue as to what this was all about. Iwanted to scream "I don't have a post office box" but I didn't. Instead, I tookher statement as a hint of some more evidence I needed: FedEx or UPS items that had beendelivered to my residence. I found a couple of shipping labels and an overnight letter.

The photographs were blown up to 8x10 glossies, they looked great. I explained to theyoung lady at the one hour photo counter that these would be evidence in a federalhearing, she seemed very impressed and wished me luck!

The research on Internet didn't take much time, but yielded great results, such as thelist of 74 Hispanic pilots who claim to reside in the same suite in Miami. But I wasn'tsure I could get that evidence admitted, I needed a hook. Judge Mullins lives in ArlingtonTexas, why not look there? Sure enough, I found certificates registered to mail dropaddresses in Arlington. That should pique his curiosity. What about Oklahoma City, wherethe FAA Airmen Certification Branch office is located. Yeah, there are mail dropcertificates there too. And lots of them in Miami, a known center for the drug trade. Ieven found pilot certificates using the address of a mail drop company that operates underthe name "The Mail Drop"!

For two days I sat here at the word processor, writing every question I wanted to ask,together with a note of what the answer would be. Hour after hour I arranged andrearranged the sequences. Which witness would I call first? Why? What questions should notbe asked? Likewise with the evidence that would be submitted. It was important to buildfrom the ground up, leaving no hole the FAA attorney could use to win on a proceduraltechnicality. That was what scared me the most. I had confidence in my evidence, and I hadconfidence that my position was proper and legal and just. But that is no protection whenthe opposition knows a courtroom trick and I don't.

Did I consider hiring an attorney? No.

There are several reasons, but perhaps the important one is that lawyers don't seemto be winning any aviation cases. Bob Hoover had a couple of the best, Howard Friedhad excellent counsel, and so on. Yet they lost. If you are going to lose anyway, whyspend the $10,000, $20,000, and more?

When an aviation case comes before the NTSB, it is heard by one of four AdministrativeLaw Judges. NTSB has only four: Judges Pope, Fowler, Geraghty, and Mullins. Aviationattorneys find themselves standing before these same four judges again and again. Worseyet, since both the judges and the attorneys tend to work in one part of the country, anattorney finds himself standing before the same one judge over and over. Now thinkabout it, is that attorney more interested in your one case, or in his many cases overall?He can never pull out all the stops and go for broke, he can never do or say anything thatmight jeopardize his relationship with this judge.

On the other hand, when you represent yourself, you only have this one case. It is thecase. There is no reason to hold back or give it less than all you've got. It has beensaid that a man who represents himself has a fool for a client. Maybe, but that fool andhis attorney have interests that are 100% aligned Plus, the attorney remembers his clientsname.

When the FAA is acting illegally (and it often is) all it takes is a lot of homework.It does not take money, it does not take fancy legal talent, it just takes doggeddetermination to hang on, and hang on, and hang on until you win. Probably that is thebiggest reason to not hire an attorney. Dogged determination and righteous indignationcannot be rented at xxx dollars per hour. They come from deep inside.

The day and hour came for the hearing. Judge Mullins was in Oklahoma City for thathearing only. It was held in a real courtroom, real legal stenographer, real black robe onhis honor. I've already described how it went. Quick, that's how it went. And it wasover. FAA had folded.

Psychologically, I was prepared to lose (I would appeal). I was prepared to win (FAAwould appeal). I realized that there might be a legal trick that I couldn't overcome andwas as prepared as possible for that. But I was not prepared for the FAA to give upbefore I got to any of the good stuff. As I sit here two weeks later, writing this at1:40 AM, I'm still not prepared for that.

What does it cost to fight the FAA and win? Here is a breakdown:

So that brings it to the $300 range. Or, in pilot terms, three hamburgers.

Of course the big item is my time. On the one hand, you could say that I'm worth Xdollars an hour and it cost 300X, or whatever. On the other hand you could realize thatit's September 18 today, and if I hadn't done all that work it would still be September 18today, so the time doesn't matter.

It's like the story of the salesman driving along the highway. He sees a farmer holdinga pig up in an apple tree. Full of curiosity, he turns around and drives back.

Fly safe, guys and gals. Just don't confuse flying safe with flying in accord with theFAA.