Pilot Wins, FAA Loses

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GUEST EDITORIAL. With all the publicity we've given to recent cases in which the FAA prosecuted certificate actions against apparently-innocent airmen, it's refreshing to read this man-bites-dog tale in which an airman took on the FAA and actually won! In this case, the airman was well-known aviation iconoclast Darryl Phillips, and his career wasn't exactly at stake but an important issue was: whether FAA orders and regulations take precedence over public law as formulated by Congress, or vice-versa. The story of how Darryl singlehandedly prevailed over the FAA's bureaucratic absurdity (without a lawyer, by the way) makes fascinating reading and just might offer some valuable lessons about dealing with the feds.

The full verbatim transcript of Darryl Phillips' trial before NTSB Judge Mullins, plus some "rest of the story" comments by Phillips are also available.

The NTSB appeal is over and FAA lost. I now have my new certificate, with glider rating, 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 that might help the next pilot deal with the feds. On one level this is a story very different from those of Mike Taylor or Howard Fried. 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 an aero-tow glider rating last Christmas. The training package was my Christmas gift from wife Patsy. We spent the holiday with good friends Phil and Marge Hodge who had just completed their own landing strip in eastern Tennessee. All four of us are pilots, plus Marge has a couple of Pat's horses so we have a lot in common, and on top of that Phil and I got our glider training. It was a great trip.

Is Rural Living Against FAA Regs?

Appellant's Exhibit P-4After passing the checkride at Chilhowee Gliderport on December 27 1996, I filled out certificate application form 8710-1, which specifically states "FAA policy requires that you use your permanent mailing address." My address is:

Darryl H. Phillips
Rt. 2, Box 255
Sallisaw OK 74955-9654

I've lived there for years, have no plans to move, and that is the address I used. Per the usual practice, I surrendered my pilot certificate and received a temporary, good for 120 days.

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

My 120 day temporary certificate expired, and for a while I couldn't fly at all, even though 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 certificate denial — with NTSB (docket CD-33), and Friday, September 5, a hearing was held before Administrative Law Judge Mullins in Oklahoma City.

The FAA Wimps Out

FAA attorney Joseph Standell made the perfunctory motion for summary judgment. I argued to the contrary. We each made our opening statements. Since I was the appealing party, I went 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 that category. 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 two witnesses I had subpoenaed were both FAA employees at Airmen Certification Branch), when the FAA 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 had amassed, 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 important objective was to see that my evidence did not make it into the record. The FAA is far more interested in covering up their mistakes than they are in justice. To say nothing of aviation safety.

What The Judge Never Heard

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

  1. In 1988, Congress passed Public Law 100-690. A portion of that law is entitled the "Federal Aviation Administration Drug Enforcement Assistance Act". It requires FAA to particularly watch pilot certificate applications who use a "post office box" or "mail drop".

  2. In response to the above, FAA's Robert L. Goodrich issued Action Notice 8700.2 in August of 1989. Apparently Mr. Goodrich didn't have a clue as to what a "mail drop" was, so he wrote the order to cover post office boxes and rural routes! A mail drop is usually a business (such as Mail Boxes Etc.) where a recipient can receive mail without revealing his whereabouts. However, Goodrich made no mention of mail drops at all in 8700.2. And as we have seen so often in the FAA, once they make a mistake — even an innocent mistake — they can not and will not reverse course and correct the error. It turns out that Goodrich's 8700.2 expired August the 18th of 1990, but is still cited today by the FAA as justification to deny a certificate.

  3. In the years since 1988, FAA has done absolutely nothing to obey the law regarding mail drops. In a superficial Internet search, I easily found 23 pilots who use mail drops in the Miami Florida area, a known drug hub. I also found 74 (no kidding, 74) certificates of pilots who claim to reside in the same suite in Miami. Curious? Hop over to the AVweb database section and search pilot certificates at zip code 33134. You will be amazed, maybe amazed enough to send a copy of that list of Ricci Riccardos to your congressman. Or the DEA. Of course, living in Miami does not make you a drug smuggler. Having a Hispanic name doesn't make you a drug smuggler. Even being a pilot doesn't make you a drug smuggler (we've been trying to convey that message for a long time). But this list should indicate that FAA Airman Certification Branch is not paying much attention to the law.

  4. Since the law was passed, FAA policy has diverged. On one hand, the regulations are in accord with the law. Until the recent Part 61 rewrite there was only one regulation that applied to this, 61.13(a). Now there are two more, 61.29(d)(2) and 61.35(a)(2)(iv). In each case they support the intent of Congress in PL 100-690 in fighting the war on drugs. On the other hand, there are many FAA orders such as 8700.1, 8710.3C, and 8610.4F that specifically follow Goodrich in going after rural routes while totally ignoring mail drops. These orders are illegal insofar as they conflict with documents that are superior, such as regulations or laws, but being illegal doesn't remove the ink from the paper. FAA officials will still cite them when it suits their purpose. The important thing for pilots to understand is that when the feds cite a document, it doesn't mean they have the law on their side.

    For example, there is a direct contradiction between the wording of pilot certificate application form 9710-1, and the wording of the General Aviation Inspector's Operations Handbook, 8700.1 regarding filling out the same form. The effect is that many pilots cannot obey the instructions in the certificate application without violating the requirements found in 8700.1. Either way the honest pilot responds, he is potentially vulnerable to fines, loss of license, et cetera. This is a perfect example of arbitrary, capricious, and not in accord with law, and a perfect example of what is wrong with the FAA. In this instance, the thing to remember is that the application form is blessed by the administrator per 61.13, and 8700.1 isn't, so the wording in the application prevails. It's just that you may — or may not — get an inspector that sees it that way. Again, arbitrary and capricious.

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

But I've gotten ahead of my story again.

Six Months Earlier...

At Sun 'n Fun in April, I spent half a day at the FAA building trying to resolve the matter, getting handed from person to person and becoming more and more frustrated. I was told that the map requirement was in the FARs. When I asked to see the regulation, the lady 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 she couldn't comprehend the distinction. When I asked to see the map requirement in whatever form it was in, no one could produce that either. I ended up dealing with Mr. Jim Riddle from 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 money at FAA. You should see that plush second-story conference room they have. Great place to watch the airshow! Of course it's empty and unused the other 51 weeks a year . As I sat there looking out at the flightline, I was thinking how nice it would be if FAA Flight Service Stations were allowed to have windows so they could see the airplanes. And the weather.

Ah, but I'm digressing again...

What Does The Law Say?

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

  • "Authorizes assignment of HHS personnel to work within the organizations and use of traditional native Hawaiian healers as well as Western-trained medical personnel."

  • "....establishes the declared policy of the U.S. Government to create a drug-free America by 1995"

  • "Includes provisions to restrict sale or issuance of bank checks, cashier's checks, travelers checks, or money orders for cash in transactions involving more than $3000"

  • "Prohibits distribution of obscene matter by cable or subscription television"

  • "Requires an OJJDP study of illegal parental abduction of children"

  • "Requires DOT rulemaking regarding trucking industry use of emergency flares, and maintenance and inspection of brake systems"

You get the idea. But it gets worse. When I began doing my homework on Public Law 100-690, I wanted to read it. What I just quoted above is from a summary, it's not from the law itself. I checked with several law libraries and couldn't find a copy of the complete law. Not on paper, not on microfilm, not on computer. I really wanted the entire tome so I could hold it up in court, and so I could compare the part the FAA quoted with the 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 into law, there are only three copies physically printed:

  • One goes to the President. That copy is gone because when an old administration leaves the White House, they take every scrap of paper with them. Each new administration begins with empty bookshelves and clean file cabinets. (Would Ford or Boeing do that?)

  • The second copy of Public Law 100-690 went to the Senate. Nobody could find it.

  • The third copy of Public Law 100-690 went to the House, which sent it to the Library of Congress. It is there, but they don't loan it out.

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

Suppose we had a Senator who was a strong friend of aviation, and suppose he wanted to keep the DEA under control and try to maintain freedom for American citizens who had done nothing wrong. He would have to vote against the "Federal Aviation Administration Drug Enforcement Assistance Act of 1988". With a title like that, he would be accused at the next election of voting in favor of drugs. Digging deeper, his opponent could show that the Senator had voted in favor of kidnapping and porn. (And against truck flares and Hawaiian 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 pilot certificate applications that use a mailing address that is a post office box or a mail drop. Nothing about rural routes. I vowed to continue the fight.

Like Pushing on a Rope

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

Much later, when I subpoenaed my files, I found that on the very next day, April 25 1997, the same Mr. Everett sent FAA Form 8060-31(2-91) to the FSDO. The form has a series of 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 the FSDO, and the very next day he sends a form to the FSDO indicating that they should not issue it. Thanks, Mr. Everett!

When I called the Nashville FSDO (the district where I had taken the exam and surrendered my certificate), the inspector said that I would have to contact my local FSDO. I did, and was told that they had no paperwork on the matter, and I should contact Airmen 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, in that case the box wasn't checked either. But I didn't know anything about it because they don't supply a copy of 8060-31 to the applicant. Perhaps it would spoil their game.

Delayed, Not Denied?

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

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

Time went by. I called various FAA officials. I talked with FAA lawyers in DC. They had never heard of any requirement for a map. I talked with NTSB lawyers, they had never heard of 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 rewrite of Part 61, and in the lengthy text that explains each change I found some good ammunition. "...61.29..has been revised to incorporate current policy, which is not to accept a post office box as part of a permanent mailing address." YES! The FAA rulemongers clearly stated in writing that current FAA policy involves post office boxes. Not a word about rural routes! A few pages later it got even better. The discussion about 61.35 gets directly to the point and talks about Public Law 100-690. Now we're getting somewhere. Again, the requirement is only for post office boxes. Nothing about rural routes.

Time Out...

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 a post office box. Not even because it demonstrates how screwed up the FAA is. This is important because sooner or later you will be in the position of fighting for your pilot certificate, 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 how another guy did his homework should give you some idea of how to go about saving your ticket when the time comes. We've read a lot about the pilots who became ensnared in FAA's legal games and lost. If you are going to do better than they did, it's important to compare techniques that lead to success with techniques that lead to failure.

Going Over the FAA's Head

I wrote NTSB and requested information on filing an appeal. They sent a fat package containing the laws and rules, together with lots of useful information including sample filled 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 certificate denial). A docket number was assigned, #CD-33. That's interesting. The "CD" is for Certificate Denial, and 33 is a sequential number beginning in 1958. Just think, in 39 years there have only been 33 pilots, including me, who have fought back. Less than one per year. Why is that?

Lining Up My Ducks

Then I began in earnest to prepare for the hearing. I subpoenaed my airman file, and everything that FAA might use against my position in this matter. I got copies of the relevant FAA forms and orders. There are more than 1400 currently active FAA orders. Some are 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 are accessible electronically. That's a shame.

I went to the post office and interviewed the postmaster, and came away with some material that was helpful. It never hurts in a federal matter to have evidence from another federal agency. I took photos of post office boxes (they probably thought I was crazy) and I took photos of my rural mailbox. Fact is, the old mailbox was beginning to look 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's office. The lady said (this is a direct quote, I wrote it down as she said it) "We have the materials put together that you subpoenaed, but we can't FedEx to a post office box"! Clearly the FAA still didn't have a clue as to what this was all about. I wanted to scream "I don't have a post office box" but I didn't. Instead, I took her statement as a hint of some more evidence I needed: FedEx or UPS items that had been delivered 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 the young lady at the one hour photo counter that these would be evidence in a federal hearing, she seemed very impressed and wished me luck!

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

Fool For A Client?

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 and rearranged the sequences. Which witness would I call first? Why? What questions should not be asked? Likewise with the evidence that would be submitted. It was important to build from the ground up, leaving no hole the FAA attorney could use to win on a procedural technicality. That was what scared me the most. I had confidence in my evidence, and I had confidence that my position was proper and legal and just. But that is no protection when the 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 seem to be winning any aviation cases. Bob Hoover had a couple of the best, Howard Fried had excellent counsel, and so on. Yet they lost. If you are going to lose anyway, why spend the $10,000, $20,000, and more?

When an aviation case comes before the NTSB, it is heard by one of four Administrative Law Judges. NTSB has only four: Judges Pope, Fowler, Geraghty, and Mullins. Aviation attorneys find themselves standing before these same four judges again and again. Worse yet, since both the judges and the attorneys tend to work in one part of the country, an attorney finds himself standing before the same one judge over and over. Now think about 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 that might jeopardize his relationship with this judge.

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

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 dogged determination to hang on, and hang on, and hang on until you win. Probably that is the biggest reason to not hire an attorney. Dogged determination and righteous indignation cannot be rented at xxx dollars per hour. They come from deep inside.

D-Day, H-Hour

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

Psychologically, I was prepared to lose (I would appeal). I was prepared to win (FAA would appeal). I realized that there might be a legal trick that I couldn't overcome and was as prepared as possible for that. But I was not prepared for the FAA to give up before I got to any of the good stuff. As I sit here two weeks later, writing this at 1:40 AM, I'm still not prepared for that.

The Price of Justice

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

Registered mail $20
Telephone calls very little, everyone has 800 numbers
Color glossies $70
Court costs $0
Internet time $0 over what I normally pay
Mileage to OKC $90 (300 miles @ .30)
Copying costs $100 (1000 pages @ .10)

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 X dollars an hour and it cost 300X, or whatever. On the other hand you could realize that it's September 18 today, and if I hadn't done all that work it would still be September 18 today, so the time doesn't matter.

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

"I've just gotta ask, what are you doing?"

"I'm fattening up this pig."

"But won't that take a long, long time?"

"What's time to a pig?"

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

Editor's Note:

You can read the full verbatim transcript of Darryl Phillips' trial before NTSB Judge Mullins, plus some "rest of the story" comments by Phillips.