Petition for Writ of Certiorari — Pope v. Bond

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FILED

APR 27 180

No. JOSEPH F. SPANIOL, JR

CLERK

Oe -

In The

Supreme Court of the United States

October Term, 1989

JAMES C. POPE,

Petitioner-Appellant,

vs.

LANGHORNE BOND JONATHAN HOWE

ROLAND A. ECKERT MICHAEL J. FORRESTER

DONALD B. ROCK CHARLES E. WEITHONER

LIONEL L. DRISCOLL CLARK ONSTAD

J. LYNN HELMS CHRISTIAN B. WALK, JR.

Respondents-Appellees.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

April 28, 1990 JAMES C. POPE, Counsel Pro Se

987 Spencer Rd.

McLean, VA, 22102

(703) 734-0987

QUESTIONS PRESENTED

(1) Whether the Appellate Court for

the D.C. Circuit has erred in it's deci-

sion to deny plaintiff his guaranteed

Constitutional rights under the First and

Fifth Amendments, thus pre-empting a Biv-

ens-type suit, when it is demonstrated

that no other form of redress or even any

hearing has been available to address the

major personnel actions and resulting

permanent injuries which he has suffered

at the hands of defendants, despite the

existence of the Civil Service Reform Act

(CSRA) of 1978.

(2) Whether the Appellate Court's

refusal to grant plaintiff's request for a

full briefing and oral argument has denied

plaintiff the opportunity to appeal the

District Court's decision to dismiss four

of the original defendants on the basis of

the 3-year statute of limitations.

TABLE OF CONTENTS

QUESTION PRESENTED.........--e-eeeee>

TABLE OF AUTHORITIES.............+4--

OPINIONS BELOW... ...ccccvcccvccccces

STATEMENT OF JURISDICTION...........

RELATED LAWS, STATUTES & RULES......

PREFACE. cc cc ccc cers eaeseecceseeceses

STATEMENT OF CASE.......--ceeceeeees

CHRONOLOGY OF POPE V. BOND ET AL....

REASONS FOR GRANTING PETITION.......

#1 DOCUMENTED FAILURE OF THE

CIVIL SERVICE REFORM ACT.....

#2 TOTAL DISSIMILARITY BETWEEN

SPAGNOLA VIS-A-VIS POPE......

#3 THE NATURE OF INJURY........

#4 THE ISSUE OF DISMISSAL OF 4

OF THE ORIGINAL DEFENDANTS...

CONCLUSION... . ccc ccccccccccvcscssens

iii

TABLE OF AUTHORITIES

Cases: Page

Bivens v. Six Unknown Named Agents

of the Federal Bureau of Narcotics

See Mees SOO ee? CASTL) nn ccecccvces 43

Bush v. Lucas

eects BET, SIS CASES) cc cccveccscs 31

Spagnola v. Mathis

809 F.2d 16, 19-28 (D.C. Cir.1986).. 38

859 F.2d 233 (D.C. Appl Ct.1988).. 38,48

Schweiker v. Chilicky

eee @e Ge. 2460 (1988) 2... ccvcvvcces 58

No.

In The

Supreme Court of the United States

October Term, 1989

JAMES C. POPE,

Petitioner-Appellant,

vs.

LANGHORNE BOND JONATHAN HOWE

ROLAND A. ECKERT MICHAEL J. FORRESTER

DONALD B. ROCK CHARLES E. WEITHONER

LIONEL L. DRISCOLL CLARK ONSTAD

J. LYNN HELMS CHRISTIAN B. WALK JR.

Respondents-Appellees.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals

for the D.C. Circuit (App. A) granted the

defendants' (Bond et al.) motion for

summary affirmance with the statement

that appellant's (Pope) claims fall with-

in the scope of grievances redressable by

the Civil Service Reform Act (CSRA) of

1978, further citing Spagnola v. Mathis,

859 F.2d 223 (D.C. Cir. 1988) and

Schweiker v. Chilicky, 109 S. Ct. 2460

(1988).

STATEMENT OF JURISDICTION

The judgement of the Appeals Court

for the D.C. Circuit was filed on Decem-

ber 29, 1989. Petitioner Pope did not

apply for a rehearing. Pope invokes the

jurisdiction of this Court under

28 U.S.C. Section 1254 (1).

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS INVOLVED.

Ast. 732, Geetion 2, oi. 31, U.S.

Constitution

Amendment I, U.S. Constitution

Amendment V, U.S. Constitution

42 U.S.C. 1985(3) (1982)

18 U.S.C. 1505

FAA Reg. 3750.4, #36

FAA Reg. 3510.8(a) Para 8, App. 2

PREFACE

This request for a Writ of Certiora-

ri involves far more than just the peti-

tioner, Pope, whose Constitutional rights

under the First and Fifth Amendments were

violated and whose career was destroyed

by the premeditated and illegal actions

of defendants --all top officials of the

FAA--who have lied under oath to the U.S.

Congress and deceived the American public

regarding the availability of an indus-

try-developed Airborne Collision Avoid-

“

ance System (ACAS) which the agency it-

self had tested in a 4-year, $12 million

evaluation program ending in 1975 with

the conclusion that the ACAS was relia-

ble, available, and affordable, and, once

approved, it could be in system-wide op-

eration with 2 or 3 years. (App. B)

In actuality therefore, this request

for a Writ of Certiorari also speaks in

absentia from the graves of the more than

900 people--aircraft crews and members of

the flying public--who have lost their

lives as a direct result of defendants’

refusal to approve the available, proven,

and low cost ACAS all during these past

15 years since 1975. The reason for this

cover-up was as simple as it was inex-

cusable: Acas approval would have

sounded the death knell for the agency's

grandiose plans to conceives, develop, and

implement a 20-year-into-the-future mul-

ti-billion dollar ground-based radar sys-

tem which, after 15 years of development,

is still not available, and likely never

will be.

What this means, of course, is that

for the foreseeable future, defendants

adamant refusal to approve the life sav-

ing ACAS will inevitably result in the

untimely deaths of those hundreds of peo-

ple who will be killed in otherwise pre-

ventable future mid-air collisions.

STATEMENT OF THE CASE

At all times relevant to the person-

nel actions which were taken by Bond et

al. against Pope, both defendants and

plaintiff were employed by the Federal

Aviation Administration (FAA). Bond wa~

FAA administrator through 1980, being

replaced by Helms who served from 1981

through 1983.

Pope was employed by the FAA begin-

ning in 1966 and served in rapidly incre-

asing levels of responsibilities until

defendants terminated his federal career

in December of 1981. Pope is a graduate

engineer with more than 30 years of expe-

rience in the field of aviation safety.

He is an Airline Transport Pilot with

more than 5000 flight hours, has served

as Chief of Aviation Safety (Chief Pilot)

for the Nebraska Department of Aeronau-

tics from 1959 through 1964, leaving

there to form his own company which manu-

factured and marketed aircraft safety

controls of his own design.

In 1966, Pope began federal service

with the FAA's HQ engineering division

and within 4 years had worked his way up

the hierarchy to become the first direc-

tor of the agency's nationwide airport

certification program. In June of 1971,

he was requested by the deputy adminis-

trator to accept the position of FAA In-

dustry and Government Liaison, and 3

years later he was appointed to the posi-

sealant ea

tion of Assistant Administrator for the

Office of General Aviation, where he

served as one of the 5 top level policy

advisors to the administrator.

It was while with the Office of Gen-

eral Aviation that in carrying out his

responsibilities to review and recommend

policy on matters of research/development

that Pope discovered through official

agency reports and meetings that plans

were being made which would serve to squ-

ander hundreds of millions of dollars in

a grossly misguided effort to invent, de-

velop, and implement an all-new multi-

billion dollar radar ground system, when,

in fact, the agency had just (then--1975)

completed a 4-year, $12 million evalua-

tion of three industry-developed Airborne

Collision Avoidance Systems (ACAS) with

the official conclusion that "..3 ACAS

have been tested and one of them meets

all the objectives of the agency."(App.B)

It immediately became obvious to

Pope, as well as to those involved in the

ACAS test program, that after 30 years of

research, mid-air collisions would almost

overnight become a thing of the past. At

that moment then, all that was needed was

the signature of the administrator certi-

fying that the leading-edge technology

ACAS--at a cost of only $1000 per air-

craft was finally test-proven and ready

for immediate protection of all aircraft

in the U.S. civil air fleet. Instead of

approving the ACAS however, the Adminis-

trator signed an official letter to the

Chairman of the Senate Aviation Subcom-

mittee (Senator Howard Cannon) misleading

him into believing that the ACAS had

failed to meet agency objectives, and

stating that the agency would continue

development of their long-range radar

ground system program begun back in 1970,

but not scheduled for completion until

1995. (App. C) In January of 1976,

Honeywel!, the company that designed

ACAS, (not yet aware that the FAA Admin-

istrator intended to lie to the Congress

regarding the merits of ACAS), issued

technical specifications which confirmed

that ACAS had a ‘zero' false alarm rate

and was ‘compatible with the air traffic

control system’. (App.D) It was at that

time (January of 1976) that Pope began

working within the agency to convince the

administrator and his other advisors that

ACAS was by car the best alternative for

preventing mid-air collisions, from both

safety and economic viewpoints. Pope's

efforts were simply ignored. To his fur-

ther shock and amazement, he discovered

several technical reports which had been

ordered in an attempt to validate FAA's

proposed radar system, but which instead

proved conclusively that ACAS was by far

superior. These reports were never made

public, and Bond et al. even went so far

i a a i

as to deny under oath to the Congress

that they had ever existed.

Recognizing the jeopardy that Pope's

knowledge of the ACAS cover-up and his

possession of those official technical

reports could have not only on the agen-

cy's image, but much more seriously, the

careers and reputations of the adminis-

trator and his other top officials, Pope

became the victim of rapidly-building and

varied harassment tactics.

In August of 1978, Pope's Office of

General Aviation was abolished. Little

more than a month later--on September 25,

1978--a PSA Boeing 727 collided in mid-

air with a small Cessna aircraft over the

skies of San Diego killing 144 people in

the two planes and on the ground. Later

that same year, Bond personally testified

under oath before Congress stating, .no

safe or reliable collision avoidance sys-

tem exists today...", despite the fact

that at least seven official FAA reports

showed that ACAS was trouble-free and

effective, whereas FAA's system \as just

the opposite.

Immediately after the San Diego mic-

air, and during the following few weeks,

Bond personally initiated personnel ac-

tion unfavorable to three high level FAA

officials--two Associate Administrators,

and, Pope--each of whom had played major

reles in the ACAS issue. Within 3 days

following the San Diego mid-air, the As-

sociate Administrator for Engineering and

Development was suddenly placed on the

retirement list. A month later, the As-

sociate Administrator for Policy, the

first woman to hold that high level posi-

tion, was tricked by the Administrator

intc resigning. Pope's fate was postpo-

ned until January of 1979, and just 5

days after the CSRA of 1978 became

effective, he was advised that he was

being unilaterally transferred across the

country to the FAA's regional office in

Seattle. Once there, his supervisor,

Chief of the Engineering branch, candidly

advised Pope that his new position was a

phony and that it had been concocted

simply to “get Pope out of FAA HQ.”, an

action that is a blatant violation of

both OPM and FAA regulations.

After trying for more than a year to

gain reassignment back to FAA HQ and a

return to his home and family in Virgin-

ia, Pope finally went public with revela-

tions of agency fraud, mismanagement, and

threats to public safety in the matter of

the ACAS cover-up. As a result of na-

tionwide publicity including an appear-

ance with Mike Wallace on the CBS "60

Minutes" newshour, Pope was subpoenaed to

testify before the U.S. Congress Science

and Technology Subcommittee on Transpor-

tation, Aviation, and Materials. (App.E)

Furious that Pope would reveal agency

secrets, the new FAA Administrator, co-

defendant J. Lynn Helms, took prompt re-

taliatory action by ordering his subordi-

nates--now co-defendants--to take whatev-

er personnel action was necessary to ter-

minate Pope's federal career. Pope

immediately became the focus of an

incredible barrage of psychologically

devastating personnel actions leveled at

him by his new supervisor--co-defendant

Forrester--who was acting under

Administrator Helms orders to fire him

(Pope). After building a spotless

reputation of service to the aviation

community and a rapid rise to near the

top of the FAA hierarchy along with fre-

quent pay increases and awards, Pope's 15

year career with the agency was suddenly

and incongruously blackened with adverse

actions, rebukes, reprimands, and finally

formal charges including unacceptable job

performance, failure to carry out orders,

insubordination, improper use of duty

time, and unauthorized absence (AWOL).

After 15 years of commendable service

with the FAA, Pope had--within months--

become an anathema.

Finally, in August of 1981, the

psychological and emotional strain on

Pope reached the breaking point and he

was told by his physicians in Seattle to

take sick leave and return to his wife

and home in Virginia. Defendants' ha-

rassment continued unabated however until

finally Pope was hospitalized during the

months of September and October. With a

viciousness and insensitiveness seldom

witnessed, while in the hospital Pope

received formal notice that his career

with the FAA was to be terminated on the

basis of the charges listed above, ex-

cluding the AWOL charge which was origi-

nally made against Pope for his being in

the hospital. Increasingly during this

extended vendetta, several members of

Congress had become aware of the vendetta

against Pope and stinging letters of pro-

test and rebuke were sent to defendant

Helms and to the Secretary of Transporta-

tion, but to no avail.

Despite the efforts of these several

members of Congress to persuade defen-

dants to cease their relentless attack on

Pope, the agency succeeded in terminating

his federal career on December 16, 1981.

This action was, of course, a direct vio-

lation of 18 U.S.C. 1505 prohibiting

retaliation against a witness who has

testified before the U.S. Congress. At a

time in his life (he was then 57) when he

should have been enjoying maximum job

satisfaction and salary level, for the

first time in his life Pope found himself

unemployed, out of the FAA, and black-

balled by defendants thus preventing him

from getting any job in the aviation

industry. Deprived of his income, Pope

applied for workers’ compensation bene-

fits which were promptly granted by the

Department of Labor which quickly rec-

ognized that his injuries had been caused

by the agency's actions and were thus

job-related.

Pope's attorney immediately filed a

petition with the Merit Systems Protec-

tion Board to contest the firing, but

after 8 months of legal maneuvering, and

just 2 days before the hearing was to

take place, defendants unilaterally re-

scinded Pope's firing in a last minute--

and successful--effort to prevent public

exposure of their mishandling of the ACAS

affair as well as their nefarious retal-

iatory treatment of Pope.

It is crucial to point out that

then--and as it continues to date--defen-

dants have employed every available

means--legal and otherwise--to avoid any

and all hearings such as a jury trial

wherein they would be placed under oath

and questioned not only about their ille-

gal treatment of Pope, but their irre-

sponsible conduct of preventing the use

of the ACAS, an action that--if exposed--

would place them in both moral and legal

jeopardy for the deaths of those hundreds

of air travelers who have died in other-

wise preventable mid-air collisions since

1975.

Minutes of a high-level FAA meeting

back on February 16, 1976 reveal that

defendants were well aware that their

decision to reject ACAS would result in

the future deaths of unknown numbers of

people: "It was explained that (the

agency's system) is still in development

and an ‘off-the-shelf' ACAS is available

to provide protection between air-carrier

aircraft at a low cost.”

Mr. Flener (FAA's director of air

traffic control): "recognizes the

pressure that may be brought to bear

by a mid-air collision...but is

willing to accept it."

It has now been 15 years since de-

fendants rejected ACAS, and their system

is still undergoing test and development

with the cost having risen to an astro-

nomical $250,000 per aircraft whereas in

comparison, the ACAS was priced at $1000

for small aircraft and about $7000 for

airliners. Moreover, if FAA's version is

ever implemented, it is designed to pro-

tect only 1 percent of the nation's air

fleet. Far more insidiously however--from

both fiscal and technological viewpoints-

-FAA's system requires an all-new, multi-

billion dollar ground network, but even

at that, the MITRE technical reports con-

firm that FAA's version is dangerous:

"It is possible for (FAA's system)

to provide the wrong command", and "self-

interference may limit effectiveness in

high density areas."..(where protection

is most needed) (FAA/MITRE report dated

September 30, 1975). Even if the FAA

succeeds in getting their dangerous

ground-based system to work, it will, at

best, protect only one percent of the

nation's civil air fleet, uses WW II

technology, and will cost 35 times more

more than the leading-edge technology

ACAS. But most tragic of all, FAA's

implementation of their problem-plagued

system will--literally--signal a sentence

of death for those who will inevitably be

killed in future mid-airs involving the

other 99% of the civil air fleet that

cannot afford--nor even have the option

to buy--any type of collision avoidance

equipment.

This still on-going struggle to

protect the f1:ing public is the cause

that brings Pope to the U.S. Supreme

Court in quest of a Writ of Certiorari.

CHRONOLOGY OF THE CASE TO DATE

Prior to the initial filing of this

suit in District Court, Pope's attorneys

compiled a comprehensively documented

account of his aviation career, his

contributions to the field of aviation

safety--with industry and with govern-

ment--his relationship with his supervi-

sors and colleagues, and the events lead-

ing up to his career termination with the

FAA. This document, titled "A Presenta-

tion to (the) Department of Transporta-

tion, Office of General Counsel", further

identified as "MEMORANDUM IN SUPPORT OF

JAMES C. POPE'S REQUEST FOR RETURN TO

ACTIVE STATUS IN THE DEPARTMENT OF TRANS-

PORTATION” provides a most comprehensive

review of the contrived and extraordinary

personnel machinations to which

defendants went in their finally

successful efforts to remove Pope from

the FAA. (App. F)

Failing in the attempt to gain

reinstatement with the FAA, Pope filed

Suit against the first group of defend-

ants on September 19, 1984 with the

following actions and orders (App.G):

9/19/84 COMPLAINT FOR DAMAGES (CONSTITU-

TIONAL TORT) AND INJUNCTIVE RELIEF (Named

in this initial complaint were defendants

Bond, Helms, Eckert, Walk, Howe, and

Forrester"

12/12/84 FIRST AMENDED COMPLAINT FOR

DAMAGES (CONSTITUTIONAL TORT) AND INJUNC-

TIVE RELIEF

6/13/85 SECOND AMENDED COMPLAINT FOR

DAMAGES AND INJUNCTIVE RELIEF.

(On the basis of information acquired by

court-ordered discovery, this action ex-

panded the list of defendants to include

Weithoner, Driscoll, Rock, and Onstad)

Because of unrelated legal problems,

Helms was deleted from this complaint,

but was subsequently reinstated as a de-

fendant.

8/5/86 ORDER/DISTRICT COURT OF D.C. dis-

missing Bond, Eckert, Walk, and Onstad on

the basis of the 3-year state of limita-

tions, but denying remaining defendants

dismissal on qualified immunity grounds.

8/29/86 ORDER/DISTRICT COURT OF D.C.

ruling on motions from both litigants.

6/2/87 ORDER/U.S. COURT OF APPEALS (DC)

denying plaintiff's staying motion.

12/15/87 ORDER/U.S. COURT OF APPEALS (DC)

denying pre-trial dismissal of remaining

defendants on qualified immunity grounds.

10/27/88 ORDER/DISTRICT COURT OF D.C.

dismissing remaining defendants Driscoll,

Forrester, Helms, Howe, Rock, and Weith-

oner following the U.S. Court of Appeals

for the D.C. Circuit's 9/30/88 (en banc)

idecthesi G@pagnola v. Mathis case.

12/29/89 ORDER/U.S. COURT OF APPEALS FOR

—————————————

THE D.C. CIRCUIT granting defendants mo-

tion for summary affirmance on the basis

that Pope's claims fall within the scope

of grievances redressable by the CSRA of

1978.

3/21/1990 ORDER/SUPREME COURT OF THE

U.g.

Order signed by Chief Justice William H.

Rehnquist granting an extension of Pope's

date for filing a writ of certiorari to

and including 4/28/90.

REASONS FOR GRANTING THE PETITION

POPE V. BOND ET AL. is concise in it's

brevity. The Appeals Court has cited

only two relevant table of authority

cases, and the comprehensive documen-

tation developed by Pope which was

compiled during the 5-year-long protract-

ed series of legal maneuvers by defen-

dants lays bare the key elements of this

case.

The major thrust of POPE v. BOND

is that despite the oft-stated "..compre-

hensive procedures and substantial provi-

sions giving meaningful remedies..." at-

tributed to the CSRA, a devious and clev-

er llth hour legal ploy was unilaterally

initiated by defendants to forestall and

prevent the August 1982 Merit Systems

Protection Board (MSPB) hearing which had

been scheduled to review defendants

termination of Pope's FAA career.

This shrewd legal maneuver by defen-

dants unilaterally prevented a public

airing of their ACAS cover-up, but more

than that, although ostensibly opening

the way for return of Pope to active FAA

service, a simultaneous personnel action

kept Pope from returning by defendants’

simple act of placing him on “Retirement

due to a Disability”.

In response to an attempt by

defendants to gain dismissal on the basis

of qualified immunity, in the order dated

August 5, 1986, Judge Flannery of the

District Court of the D.C. stated:

"..there is no doubt that--as alleged--

plaintiff's speech addresses a matter of

considerable public concern (flight safe-

ty). In this case, there appears to be

no compelling government interest in pre-

venting such speech other than to sup-

press lawful criticism. Plaintiff (Pope)

was a designated FAA ombudsman; if his

outspoken views are considered ‘undermin-

ing the FAA‘, then so must any critical

view made public. Indeed, speech which

most embarrasses an agency will often be

the most important speech. There are no

extraordinary circumstances in this case

so that defendants could not reasonably

have known of the existence of these

First and Fifth Amendment rights. There-

fore the remaining defendants are not

entitled to qualified immunity at this

time."

Although the Appeals Court upheld

this decision, the District Court's Au-

gust 5, 1986 order denying qualified im-

munity, at the same time dismissed defen-

dants Bond, Eckert, Walk, and Onstad on

the basis of the 3-year state of limita-

tion. This decision along with the Octo-

ber 27, 1988 order dismissing remaining

defendants Driscoll, Forrester, Helms,

Howe, Rock, and Weithoner resulted in

Pope's appeal action which was subse-

quently denied by the U.S. Court of Ap-

peals with their December 29, 1989 grant-

ing defendants’ request for summary

affirmance.

Accordingly, this request for a writ

of certiorari encompasses all ten defen-

dants effectively dismissed by the Ap-

peals Court action of December 29, 1989,

inluding the original defendants dis-

missed by the District Court on August 5,

1986.

| ™

It is relevant to clarify that dur-

ing the 4-year protracted history of this

case, defendants have 3 times attempted

to have the case dismissed on the basis

of Bush v. Lucas 462 U.S.367 (1983), but

each time the District Court denied such

motions. The defendants declined to ap-

peal those decisions, thus rendering moot

any further contention that Bush is a

barrier to a Bivens remedy for Pope.

Since the Court of Appeal's decision

on September 30, 1988 in Spagnola v.

Mathis 859 F.2d 223 (1988), which served

to limit Spagnola‘s redress to the unre-

viewable whims of the Office of Special

Counsel (OSC), the U.S. Congress has

formally recognized the ineffectiveness,

shortcomings, failures, and particularly

the incredible damage which has been

perpetrated by the OSC during the decade

since the passage of the CSRA; damage

that has not been exclusively limited to

the hundreds of civil servants that have

been denied justice, but also to the

American public at large who have paid

the more painful price for the OSC's

failure to carry out it's originally

intended mission. In the instance of Pope

v. Bond et al., the OSC's dismal failure

has been one of the key factors leading

to the deaths of hundreds of air

travelers in mid-airs since Pope first

went to the OSC back in 1981.

After several abortive attempts to

pass legislation that would force the OSC

to discontinue it's nefarious behavior,

the U.S. Congress passed--unanimously--

the Whistleblower Protection Act of 1989

which was immediately signed into law by

President Bush. At long last, the OSC

was firmly directed to protect those civ-

il servants who risked their careers for

the public welfare. Though this legisla-

tion is not retroactive and will not pro-

tect Pope, the wording of the Bill and

the history of this legislation--and that

of previous similar attempts--leave no

question as to the intentions of Congress

on the matter of protection and redress

for legitimate federal whistleblowers--

such as Pope--who reveal documented

instances of fraud, waste, abuse, and

threats to the welfare of the American

public.

Therefore, the speculation through-

out the past few years by the Courts as

to what was, and what was not, intended

by the U.S. Congress can now be reviewed

and clarified in light of this recently

defined environment of protection for

civil servants, and it is with this en-

lightened guidance that a vigorous argu-

ment is made in this case of Pope's re-

quest for a writ of certiorari with a

meaningful review of relevant cases.

REASON #1 TO GRANT THE

PETITION FOR WRIT OF CERTIORARI

DEMONSTRATED FAILURE OF THE CSRA OF 1978

The Courts have erred in their interpre-

tation of the CSRA with their opinions

that federal employee protections

provided by the Act are a substitute for

those provided by the Constitution rather

than serving as additional protection as

intended by Congress. Even in Bush v.

Lucas, 462 U.S. 373 (1983), although

litigation was initiated prior to

enactment of the CSRA, this Court agreed

that:

"Thus, we assume , a federal right has

been violated and Congress has provided a

less than complete remedy for the wrong."

None-the-less, this Court held on p.367:

"Because petitioner's claims arise out of

an employment relationship that is

governed by comprehensive procedural and

substantive provisions giving meaningful

eeennnele

remedies against the United States, we

conclude that it would be inappropriate

for the Court to supplement that regu-

latory scheme with a new (nonstatuatory

damages) judicial remedy.", and, "In the

absence of such a congressional directive

(that the courts refrain from exercising

its prerogatives to award damages) the

federal courts must make the kind of

remedial determination that is appro-

priate for a common law tribunal, paying

particular heed however to any special

factors counseling hesitation before

authorizing a new kind of federal

litigation.” (p. 378)

It is suggested to this Court that

although at the time of the Bush

decision in 1983, certain ‘special

factors’ may have existed, in the years

since passage of the CSRA, this generic

list of ‘special factors’ has undergone a

crucial metamorphosis. Interestingly, no

ieee eentem eel

court has, as yet, articulated the full

panoply of these ‘special factors’.

Reading this Court's holding on Bush,

strongly suggests that "...Congress'

comprehensive scheme protecting civil

servants... is at least one such

"special factor’. This Court also

acknowledged: (Id p. 378)

"The federal courts’ statutory

jurisdiction to decide questions confers

adequate power to award damages (emphasis

added) to the victim of a constitutional

violation.” (even if Congress has not

expressly authorized such a remedy. )

"When Congress provides an alternative

remedy, it may indicate its intention

that the Court's power should not be

exercised.”

However, This Court goes on to admit

in Bush that Congress did not exercise

such a legislative directive. Therefore,

it is suggested that, armed with this

authority, this Court would seek to err

on the side of justice for federal

employees by exercising it's right "...to

grant relief not expressly authorized by

congress..." as provide by 28 U.S.C. 1331

(1976).

If the Congress, in it's wisdom,

recognizes that federal employees--more

than just an average citizen--are

responsible for writing and enforcing

rules which serve to protect the monies,

properties, and lives of all citizens,

then it seems prudent and rational that

Congress and the Courts would wish to

provide to federal employees additional

protections above and beyond those

provided by the Constitution. The

essential point to be made here is

twofold: first; that every citizen is

entitled to equal protection under the

Constitution, and second; nothing written

in any known law to date requires that a

U.S. citizen renounce or surrender his or

her rights to protection under the U.S.

Constitution.

In 1983 when Bush was decided, the

CSRA had yet to validate it's worth, so

the courts had every reason to believe

that federal employees would finally be

protected by, as was so frequently

stated, ...an elaborate remedial system-

”

-constructed step by step...” to provide

for redress for Constitutional viola-

tions. Unfortunately however,--l2 years

after passage of the CSRA--a review of

the original legislative history of that

Act in juxtaposition with it's demon-

strated effectiveness--or ineffective-

ness--in conjunction with the subsequent

Congressional hearings which have been

held, and concluding with the hearings

leading up to the passage of the

Whistleblowers’ Protection Act of 1989,

all combine to paint a legislative

version of the "Pictu

Although originally

highlight of the CSRA,

Special Counsel has p

consummate disaster f

employees it was supp

Even as early as 1982

re of Dorian Gray’

intended as the

the Office of

osed to protect

, Congresswoman

Patricia Schroeder, Chairwoman of the

Subcommittee that spawned the CSRA,

introduced a bill to

stating that ”...it 2

abolish the OSC,

ow protects

management and the administration from

the whistleblowers.

It's the reverse of

Congress’ intent.” And, during the 7

years since Bush, Congresswoman

Schroeder's alarm at

the devious

shenanigans of the OSC's miscarriage of

justice has been supp

case of where the OSC

orted by case after

has failed to

investigate whistleblowers’ complaints,

and then when it did,

failed to find any

evidence of prohibited personnel actions.

A report by the Civil Service

Subcommittee of the House Post Office and

Civil Service Committee stated back in

1976: "“[{After] eight years..., the

committee found that the Office of

Special Counsel--the agency established

to be the whistleblowers’ advocate--has

turned down more than 99 percent of

whistleblower cases brought to it without

initiating disciplinary or corrective

action. For the last five years, since,

1961, the Special Counsel has not sought

corrective action to restore the job of

any whistleblower, including Pope.

Since the establishment of the OSC, one

Special Counsel has taught a course for

Federal managers on how to fire

whistleblowers. Another has expressed

disdain for whistleblowers by referring

to them as ‘malcontents’ and ‘informants’

and likening them to bag ladies and

mental health patients. One Special

Counsel even warned would-be

whistleblowers to keep quiet or they

would get their heads blown off." H.

Report 99-859, 99th Cong., 2nd Sess.,

In light of the recent formal

recognition by the Congress of the past

failures of the OSC, it now becomes

justified to review the Appeals Court 3-

judge panel's December 5, 1986 decision

on Spagnola. (Id. p.ll)

"Inspection of the legislative history of

the CSRA makes clear, however, that

Congress intended to increase protection

of federal employees who suffer reprisals

for disclosing improper government

conduct.”

"Congress meant to provide additional

protection to such federal employees

because it recognized that the existing

administrative and judicial remedies had

often proved inadequate." (and Id. p.12)

"It thus seems anomalous to attribute to

Congress an intent to foreclose the

preexisting, judicially-created remedy of

a Bivens action in those instances in

which a tort action is a whistleblower's

only effective avenue of relief from

exactly those evils sought to be averted

by the (CSRA) Act. We cannot attribute

to Congress an intent to put whistle-

blowers in a worse position than they

were in prior to the enactment of the

CSRA."

"It thus seems plausible and not at all

"anomalous to attribute to Congress the

intent both to supplant Bivens remedies

when conceivably more favorable alterna-

tive remedies are available and to leave

Bivens intact as a fall-back when they

are not.” (Id. p.13)

"We also conclude that mere resort to the

osc is not a ‘constitutionally adequate’

remedy for the First Amendment violations

alleged by Spagnola.” (and Id. p. 14):

"This circuit has expressly considered

the constitutional adequacy of the OSC

remedy available to Spagnola and has

clearly concluded that such a remedy is

an inadequate vehicle for vindication of

constitutional claims."..."We thus do not

hesitate to find that Spagnola's resort

to the OSC is not an adequate remedy that

precludes the availability of a Bivens

suit for his First Amendment claims.”

"Our line of cases is simply too

unequivocal in its clear rejection of the

OSC as a remedy adequate to vindicate

constitutional rights.” (Id. p.19)

Justice Brandeis of this Court has

stated:

“The supremacy of law demands that there

shall be opportunity to have some court

decide whether an erroneous rule of law

was applied; and whether the proceeding

in which facts were adjudicated was

conducted regularly. To that extent, the

person asserting a right, whatever its

source, should be entitled to the

independent judgment of a court on the

ultimate question of constitutionally.”

St Joseph Stock Yards Co. v. United

States, 298 U.S. 38,84 (1936) (Brandeis,

J. Concurring).

This Court applied these general

principles in Oestereich v. Selective

Serv. Bd., 393 U.S. 233 (1986). Justice

Harlan stated, "[{[i]t is doubtful whether

a person may be deprived of his personal

liberty without the prior opportunity to

be heard by some tribunal competent fully

to adjudicate his claims.” Id. at 243 n.6

(Harlan, J., concurring)

More recently, in Califano v.

Sanders, 430 U.S.99 (1977), this Court

stated that "[c]Jonstitutional questions

obviously are unsuited to resolution in

administrative hearing procedures and,

therefore, access to the courts is

essential to the decision of such

questions."

None of the Supreme Court's cases to

date have squarely determined whether

Congress can deprive an individual of a

judicial forum in which to raise

constitutional claims and substitute an

unreviewable administrative decision.

Returning to Spagnola (1986), on p.

24, the footnote states "The constitu-

tional command at issue here is the

requirement of due process. Spagnola's

right to fundamental fairness in having

some place to litigate his constitutional

claim is no less abridged by a court than

it would be by congress; to hold

otherwise would place the courts beyond

the call of the Constitution.”

Referencing the Bivens case itself,

403 U.S. at 397, this Court observed that

where there is an "explicit congressional

declaration” that injured parties should

be “remitted to another remedy, equally

effective in the view of Congress, or

where there are "special factors"

counselling hesitation in the absence of

affirmative action by Congress," id. at

396, the judiciary should decline to

exercise it discretion in favor of

creating damages against federal

officials."

Following this guideline, nowhere in

the legislative history of the CSRA does

the Congress give “explicit congressional

declaration” that injured parties should

be remitted to another "equally effective

remedy". Beyond that however, Pope seeks

to make the case that first, there can

exist no equally effective remedy for

guaranteed constitutional protection, and

second, that anything less than full

constitutional protection is

unconstitutional. Therefore, enactment

of such legislation by the Congress would

be simply and unequivocally a violation

of the constitution itself.

Though never mentioned in any of the

relevant cases reviewed to date on this

issue, one “special factor" looms beyond

all others, and that is the concern for

the viability of the U.S. court system

itself. All U.S. courts, the Congress,

and indeed the legal profession as a

whole are fully cognizant of the very

ominous specter of a plethora of

frivolous Bivens lawsuits lurking at

courthouse doors throughout the country.

One need only to envision the floodgates

that would open to the U.S. court system

if the green light were given for federal

employees to file Bivens damages suits

whenever they fail in their efforts to

gain a promotion or even to be hired by

the federal government. Such access to

Bivens could even spawn suits by less

well-intentioned individuals who might

apply for promotions or jobs simply with

the intention to file such suits when

they were turned down.

Above the west side entrance to the

U.S. Supreme Court building, carved in

granite, are the words "EQUAL JUSTICE

UNDER LAW". There is no footnote carved

anywhere excepting federal employees.

If, as is frequently repeated, the

responsibility of the court system is not

to uphold justice, but to enforce the

law, then, at the very least, this Court-

-with full power to grant relief not

explicitly authorized by Congress--must

exercise its jurisdiction and provide a

Bivens remedy for aggrieved federal

employee Pope in light of the fact that

no other avenue of redress has been

available to him for the illegal

wrongdoings that have been perpetrated

against him by defendants. Far more

encompassing than that however, these

defendants, who have likewise

intentionally failed to take the

available actions that would have saved

the lives of more than 900 people killed

in mid-air collisions since 1975, must be

called to account for their nefarious

actions and malfeasance against the very

American flying public they were sworn to

protect. Lacking such Court action,

these scofflaw officials--and all other

such federal officials--will consider

themselves forever beyond the bounds of

accountability.

REASON #2 TO GRANT WRIT OF CERTIORARI

TOTAL DISSIMILARITY BETWEEN

POPE vis-a-vis SPAGNOLA

Notwithstanding the Appeals Court

September 30, 1988 en banc decision to

rule against a Bivens remedy for Spagnola

with their opinion that the discretion of

the OSC was a meaningful substitute for

Constitutional protection, that Court

opinion did, however, define a

categorization difference between Pope

and Spagnola on page 6:

"Neither Hubbard nor Spagnola could claim

the more elaborate administrative

protections--including judicial review--

that Congress reserved for incumbent

employees aggrieved by major (emphasis

added) personnel actions (e.g., removals,

reductions in grade or pay, suspensions

of more than 14 days). See 5 U.S.C.7511-

14, 7701-03 (1982).

Unlike Spagnola who was no worse off

after having suffered the alleged

violation than before, Pope was not only

unilaterally transferred to the far

reaches of the contiguous United States,

he was the victim of an admitted ruse in

fabricating a phoney job description to

banish him out of FAA HQ, following which

he was subjected to more than two years

of continual harassment including a

trumped-up investigation that was proven

to be totally unsubstantiated. Having

been candidly advised by his Seattle

Supervisor that his job was phony, it was

obvious from the beginning of his exile

that at any point in time an evaluation

could be made to show that the work that

he didn't have to do, he hadn't done,

which meant in essence that after a short

period of time, defendants could proceed

with termination action. All during this

more than two years of literally being

held hostage, Pope was separated from his

wife, children, and home back in

Virginia; a home that he had in early

1979 just completed designing and

building. Thus, Pope was forced to serve

out his sentence of banishment by

enduring humiliation and harassment

during his hours on duty, and then spend

the evening and nights alone in a rented

room; day after week after year after

year. The harassment which Pope

underwent became ferocious after his

subpoenaed Congressional testimony when

orders were issued by defendant J. Lynn

Helms (newly installed Administrator) to

do whatever was necessary to force Pope

out of the FAA and federal service.

There can be no question but that Pope

suffered a major personnel action and yet

he was given not one hearing.

During his 15 year career with the

U.S. Department of Transportation (12

years with the FAA), all building upon

his previous 15 years of aeronautical

experience with the Nebraska Department

of Aeronautics and in industry, Pope had

consistently received excellent evalua-

tions from his previous supervisors. His

performance was uniformly of the highest

caliber with frequent quality pay

increases, bonus awards, and certificates

of achievement, both from within and

outside of government. Even in Seattle--

that is, until his subpoenaed testimony

took place--, Pope was rated for

promotion potential and judged "...an

experienced, mature and conscientious

technical employee whose education and

background provide good qualifications

for employment/promotion in aviation

safety management programs..."

But all at once--immediately after

the dual events of his subpoenaed

congressional testimony and the public

exposure of defendants’ ACAS cover-up on

CBS "60 Minutes"--defendants complimen-

tary attitude towards Pope changed to one

of withering harassment. His supervisor,

defendant Forrester, was the one tasked

with the illegal assignment of carrying

out defendant (administrator) Helms

orders to terminate Pope's career. All

at once, defendant Forrester began taking

every conceivable opportunity to fault

Pope. In a continuing and unrelenting

series of hairsplitting, hyper-technical

allegations and trumped-up accusations,

defendant Forrester managed--in the

following few months--to amass a paper

record he hoped was sufficient to have

Pope removed on the array of charges

previous mentioned. This vicious and

inhumane attack which was directed at

Pope every minute of every day finally

succeeded in causing him to suffer severe

mental and emotional stress along with

the kind of physical pain indicative of

serious physical problems. It was in

early August then that on the advice of

his physicians, Pope went on sick leave

and returned to his home and family in

Virginia to recuperate. Incredibly

however, defendant Forrester still

continued his relentless harassment by

long distance through the use of

threatening letters to the point that

Pope was forced to enter Sibley Hospital

for stress evaluation and treatment.

Still defendant Forrester continued his

vendetta of abuse and without a pang of

remorse notified Pope that termination

action was being taken, and that one of

the charges was being AWOL for his being

in the hospital.

Amazingly however, even after they

had successfully terminated Pope's

federal career, defendants continued

their unconscionable harassment against

him by taking overt and forceful actions

calculated to prevent his receiving

unemployment compensation. Failing in

that attempt, they next employed their

voracious vendetta in an all-out effort

to force a bi-furcated MSPB hearing that

would force Pope and his legal counsel to

the heavy expense of traveling out to

Seattle for presentation of their

testimony before the (MSPB).

Eventually frustrated in their

devious attempts to force a bi-furcated

hearing, after 8 long months of pre-

hearing legal jousting, the MSPB hearing

was finally set for August 2, 1982. Once

this date had been set, defendants tried

time and again to induce Pope to call of

the hearing, but each time they were

summarily rebuffed for after all, this

was to be the first time that defendants

would be compelled to testify under oath

regarding both their attacks on Pope and

the scandal of their cover-up of the

ACAS. Desperate to prevent a public

airing of their misdeeds, at the

"eleventh hour”, they unilaterally

rescinded Pope's firing action, and

despite his vociferous objections, the

Administrative Law Judge promptly

cancelled the hearing.

Succeeding in their legal ruse to

forestall the MSPB hearing, but then

faced with the specter of Pope's possible

return to work with the FAA, defendants

next employed still another clever

maneuver: in one fell swoop, they both

cancelled his firing and at the same time

insured that he would not return to the

FAA. They accomplished this by placing

him on “Retirement due to a Disability."

Thus, in a fiendishly clever bit of legal

gimmickry, defendants managed to employ a

variation of the situation where a young

boy kills his parents and then throws

himself of the mercy of the court

claiming that he is an orphan. In Pope's

case, defendants intentionally and

maliciously inflicted severe and lasting

emotional trauma on him, and then, after

rescinding his firing action to prevent

an MSPB hearing, turned around and

claimed that Pope was disabled,

incapacitated, and deemed unfit to return

to service with the agency. And all of

this ferocious retaliation premeditatedly

leveled broadside against Pope by the ten

named Bond et al.,defendants infuriated

and fearful that this one individual

sought--seeks--to reveal that hundreds of

people have died--as will others in the

future--in mid-air collisions that

defendants could have taken action to

prevent back in 1975.

Can there now be any doubt but that

the circumstances of Spagnola vis-a-vis

those of Pope are a universe apart.

Whereas Spagnola was denied a promotion,

his primary goal having been self-

benefit, even though he may have been a

victim of a Constitutional violation,

such an act was classified as a minor

personnel action. Conversely, Pope

placed himself and his career directly in

the line of fire between an errant

bureaucracy and the flying public. As a

direct result of his attempts to save

lives, Pope was unilaterally transferred,

harassed for more than two years, and

then finally fired, certainly a major

personnel action by any means of measure,

and all of this without any hearing

whatsoever.--administrative or judicial.

The Constitutional issue to be

addressed here is the requirement of due

process. The system denied Pope his

fundamental right to have his

Constitutional claims litigated. Thus

for Pope--as for Bivens--it is damages or

nothing.

REASON 3 TO GRANT THE

WRIT OF CERTIORARI

THE MATTER OF INJURY

In Bush v. Lucas, plaintiff Bush was

downgraded two grades for having publicly

stated that his job was worthless.

Although initially sustained by the Civil

Service Commission (CSC), an Appeals

Board subsequently reversed that decision

and Bush was restored to his original GS-

15 position and awarded back pay. Bush

was not transferred to another geopraph-

ical location in the process, and except

for the temporary decrease in pay, he was

in no worse position than he was before

his adverse personnel action took place.

In Schweiker v. Chilicky,

respondents were 3 social security

disability recipients whose monetary

benefits were wrongfully terminated.

More serious certainly than Bush, these

individuals experienced a delay of many

months before investigations and hearings

restored them to disability status with

full retroactive benefits. As difficult

as it must have been for these three

people during the interim period, the

essential fact is that their injuries

were temporary, and like Bush, after

their benefits were restored, they were

no worse off than they had been before

their traumatic event had taken place.

In Spagnola v. Mathis--and in the

companion case of Hubbard v. EPA--both

decided by the D.C. Appeals Court in

their September 30, 1988 en banc

decision, Spagnola sought a higher grade

level, and when not selected, subse-

quently filed a suit for a Bivens remedy.

After the denial action by the Appeals

Court, Spagnola--and similarly Hubbard--

found themselves no worse off than before

their incidents began. Moreover, neither

Spagnola nor Hubbard suffered any

reduction or suspension in pay, as did

both Bush and the three Chilicky

litigants.

In reality, neither Spagnola nor

Hubbard suffered any injury. Moreover,

the temporary injury suffered by Bush,

and even the much more severe injuries

suffered by the Chilicky litigants pale

in comparison to the scope and severity

of the permanent injuries suffered by

Pope at the hands of Bond et al., who in

brazen defiance of FAA rules, federal

statutes, and the U.S. Constitution

itself blackened Pope's reputation and

30-year exemplary career in aviation he

had worked so long to achieve, ended his

career in aviation--with the FAA as well

as with any hope of being employed in the

aviation industry--and, for a dedicated

aviation safety professional such as

Pope, ended the most meaningful part of

his life. In forced exile, Pope also

lost two plus years of his life during

the separation from his wife and children

from 1979 through 1981.

Bond et al.'s arrogant display of

open warfare against a dedicated public

servant was carried out in full view--and

with complete disregard--of the U.S.

Congress and the American public. The

defendants patently illegal actions were

vigorously protested by a storm of

letters from Congressmen and Senators of

both parties. One of these letters, from

Congresswoman Patricia Schroeder, warned

the Secretary of Transportation (after

she had learned that defendant Helms

stated he "...would not tolerate

whistleblowers...") that "...if he

(Helms) cannot live within these

requirements (the statement of President

Reagan and the laws of the land), perhaps

Administrator Helms should resign.”

Another of the many Congressional

letters sent to the Secretary of

Transportation on Pope's behalf was co-

signed by Congressmen Robert K. Dornan,

Guy Vander Jagt, Congresswoman Schroeder,

and Senator J. James Exon on 11/6/81:

“Our concern (over the on-going adverse

personnel action being taken by

defendants against Pope) is based on the

inescapable conclusion that the personnel

action was taken because of Mr. Pope's

"whistleblowing’ activity in publicly

disclosing the waste in the FAA's

proposed Airborne Collision Avoid-dance

System and his public complaints and

testimony before Congress with regard to

the general direction taken by FAA in the

development of a mid-air collision

avoidance system. Collectively, we now

express our strongest objection to this

recent ill-advised personnel action and

ask that it be immediately rescinded."

Seldom--if ever-- has any

whistleblower had the endorsement and

support of his immediate supervisor, but

Pope did. Allan Landolt, under whose

supervision Pope worked in the few months

before Landolt's FAA employment was

terminated and Pope's office was

abolished, testified:

“James Pope was an excellent FAA

employee. He is the type of qualified,

dedicated employee needed in greater

numbers by the FAA, and should not be the

object of retaliation or reprisal for

Carrying out assigned responsibilities...

for aviation safety."

Dr. Mervin K. Strickler, Jr., a

colleague of Pope testified: "I am

convinced in my mind that Jim Pope was

sent to Seattle in the hope that he would

leave the FAA. It was an inhumane,

punitive transfer. If Jim Pope's case is

allowed to stand as is, no government

official will ever be willing to speak

out. what a tragedy for our form of

government and way of life this

represents"(emphasis added).

REASON #4 TO GRANT THE

WRIT OF CERTIORARI

THE ISSUE OF THE DISMISSAL OF ORIGINAL

DEFENDANTS BOND, ECKERT, ONSTAD AND WALK

BY THE DISTRICT COURT ON THE GROUNDS OF

THE 3-YEAR STATUTE OF LIMITATIONS.

Though these four defendants had

left FAA a few months prior to the

Original filing of Pope v. Bond et al.,

as if cast in stone, their orders and

policies remained in full force and

effect, and served as the foundation upon

which subsequent defendants completed the

process of firing Pope. Moreover, Pope

was required by legal procedures to

exhaust all administrative remedies prior

to filing litigation against defendants,

the final effort being the December 16,

1983 Steptoe and Johnson “MEMORANDUM IN

SUPPORT OF JAMES C. POPE'S REQUEST FOR

RETURN TO ACTIVE STATUS IN THE DEPARTMENT

OF TRANSPORTATION.” (App. F)

The legacy of Bond et al.'s vendetta

against Pope was made all too clear when

in 1985, Carol Walsh of CONWAL, INC.,

working for the Department of Labor in

still another effort to gain Pope's

reinstatement with the FAA was told in no

uncertain terms by FAA officials that

there was "no way" Pope would ever be

allowed back in the agency.

In requesting this writ of

certiorari, Pope asks this Court to also

review the arguments made to the D.C.

Court on this matter and let a jury

decide the question of the 4 named

defendants’ dismissal on the 3-year

statute of limitation issue.

CONCLUSION

In repayment for his efforts to

protect the flying public, defendants

viciously and with malice aforethought

methodically proceeded to inflict serious

mental and emotional injuries on Pope

with the obvious intention of terminating

his aviation career, and they succeeded

in doing just that--permanently.

In the instance of Pope v. Bond et

al., both justice and the law cry out for

this Court to allow a jury trial asking

not only redress for the injuries which

defendants have visited against Pope, but

retribution from the defendants for the

laws which they have violated and the

trust which they have abandoned in

failing to protect the flying public.

Though the Whistleblowers' Pro-

tection Act of 1989 is not retroactive

and will not benefit Pope, it will give

such dedicated public servants new and

meaningful avenues of redress that Pope

did not have access to, but, at the same

time will not open the legal floodgates

to a plethora of frivolous lawsuits

should this Court decide in its wisdom to

grant Pope’s request for a writ of

certiorari. It must be emphasized in

closing that Pope had no redress what-

soever: thus, in stark reality, as it

was with Bivens, for Pope it is damages

of nothing.

In the words of U.S. Supreme Court

justice Sandra Day O'Connor:

"But the hour will come for each of us,

and because of this, we surely must also

know that the very nature of humanity and

society, regardless of its size or

complexity, will always turn on the act

of the individual and, therefore, on the

quality of that individual.”

Pope has demonstrated that he is

that caliber of individual, and in return

for the recognized and dedicated service

he has given to his country in the field

of aviation safety--he asks this Court to

issue a writ of certiorari to the U.S.

Court of Appeals for the D.C. Circuit.

Respectfully submitted,

James C. Pope, Counsel Pro Se

987 spencer Road,

McLean, VA, 22102

(703) 734-0987

oe ee eo? ee en eee oe eo,

APPENDIX A

United States Court of Appeals

for the District of Columbia Circuit

No. 89-5186 September Term, 1989

C.A.No. 84-2922

James C. Pope, Appellant FILED

m. Dec 29, 1989

Langhorne Bond, et at., Constance L. Dupre

Before: Ruth B. Ginsburg, Williams

and Sentelle, Circuit Judges

ORDER

Upon consideration of the motion for

summary affirmance, the opposition thereto and

the reply, it is

ORDERED that the motion for summary

affirmance be granted. Appellants claims fall

within the scope of grievances redressable by

the Civil Service Reform Act, 5 U.S.C.2300 et

seq.(1978). appellant therefore may not

maintain a constitutional tort action against

the individual federal defendants. See

Spagnola v. Mathis, 859 F.2d 223

(D.C.Cir.1988) (en banc). See also Schweiker

Wi aciecelietincaniaiinitaeaeeaandaniemeatiiiienameaimmmaaills

v. Chilicky, 108 S. Ct. 2460 (1988)

The clerk is directed to withhold

issuance of the mandate herein until seven

days after disposition of any timely petition

for rehearing. see D.C. Cir. Rule 15.

Per Curiam

APPENDIX B

Department of Transportation

Federal Aviation Administration, Wash, D.C.

EXECUTIVE COMMITTEE MINUTES

75-E7

December 16, 1975

4:30 p.m.

Chairman: Mr. Dow

Attendees: Weithoner, Cockran, Israel,

Sheftel, Meister, Flener, Landolt, Ferrarese,

Kuykendall 1

Assessment of Airborne Collision

Avoidance Systems (ACAS)

The following three systems were evaluated:

Manufacturer Name Type

McDonnel1-Douglas EROS Time/Freg

RCA SECANT Interr/Transpond

Honeywell AVOIDS Interr/Transpond

On the basis of cost and performance, the

Honeywell AVOIDS II system would be the clear

choice for implementation. This solution

could, with an early decision, reach a high

level of effectiveness by 1983-84. The total

cost through 1985 (for both civil and

military) would be about $600 million.

Mr. Dow stated the necessity for the

agency's having a positive plan of action. He

said that once a decision is made, an agency

package must be prepared outlining the program

and stating the agency's objectives. He feels

FAA must be prepared to give a full accounting

to Senator Cannon, who instigated the report,

and that a large part of that discussion will

deal with the elimination of ACAS, in view of

the fact that three ACAS systems have been

tested and one of them meets all the

objectives of the agency.

APPROVED: /s/ D. P. Castleberry, Dir,

Executive Secretariat DATE: 1/13/76

FOR OFFICIAL USE ONLY

Public Availability To Be Determined Under 5

0.8.C. 332

APPENDIX C

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION, WASH, D.C.

February 9, 1976

Honorable Howard W. Cannon

Chairman, Subcommittee on Aviation

Committee on Commerce

U.S. Senate, Washington, D.C.,20510

Dear Mr. Chairman:

In May 1974, the FAA testified to the

Subcommittee on Aviation of the Senate

Commerce Committee regarding the issue of

midair collisions. We provided information on

the status, progress, and plans for improving

midair collision protection and stated that we

were proceeding with the evaluation of the

Airborne Collisions Avoidance Systems (ACAS)

being offered by McDonnell-Douglas, Honeywell

and RCA.

We have now completed the analysis and

flight testing of these three systems; the

technical assessment was supplemented by an

independent cost analysis performed by ARINC

Research, Inc. We have concluded that the

Honeywell system offers superior performance

and lower cost of the three systems, but

concerns still remain in the area of false

alarms and compatibility with the present ATC

system. (emphasis added) A final report

summarizing the comparative testing is now in

printing and will be forwarded to you within

one month.

(However), we have concluded that the

desired increase in separation assurance

protection can best be achieved by

alternatives other than ACAS, in a manner

which provides protection in an equivalent

time, at a reduced cost, and minimizes the

problems of false alarms, ATC compatibility,

and transition to future ATC services.

Sincerely,

/s/ John L. McLucas

Administrator

APPENDIX D

January 1976

SOME DAY THERE WILL BE A SOLUTION

TO MIDAIR COLLISION PROBLEMS

THAT SOMEDAY IS TODAY AT

HONEYWELL

[ --------------------------------------

[ (picture of a view ]

] from a cockpit that ]

[ depicts a near ]

[ mid-air collision) ]

[ wenn naan nn nnn nn nnn nee one ee - 22-2

* Practical in size, weight, and cost

* Ability to handle extremely high density air

traffic (up to 800 aircraft within a 70 mile

radius)

* Virtually a zero false alarm rate

* Compatibility with the ATC system

* Versatility--the ability to meet both the

cost and technical needs of high performance

jet aircraft and single engine propeller

driven aircraft

HONEYWELL has developed, manufactured, and

sen

tested two collision avoidance systems that

meet all the above requirements. AVOID-1 is

designed for airliners and others users of

high performance jet aircraft. AVOID-2 is a

more simple, less costly, and meets the needs

of smaller and slower aircraft.

HOW DOES IT WORK--WHAT DOES IT DO

Both systems consist of the following:

* Two Antennas-acting together, the two

antennas send out coded RF (radio frequency)

Signals all around the aircraft. One antenna

covers the hemisphere of space above the

aircraft; the other covers the hemisphere of

space below the aircraft. The same antennas

also receive the RF signals from other

aircraft. Both aircraft are electronically

made aware of the others’ presence.

APPENDIX E

Subpoena Duces Tecum

(Hearing)

BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES

OF THE CONGRESS OF THE UNITED STATES

OF AMERICA

TO: Mr. James C. Pope

You are hereby commanded to be and appear

before the Sub Committee on Transportation,

aviation, and Materials of the House of

Representatives of the United States, of which

the Hon. Dan Glickman is chairman, in Room

2325 of the Rayburn Building House of

Representatives in the city of Washington, on

March 31, 1981 at the hour of 9:30 a.m. then

and there to produce the things identified on

the attached schedule and to testify touching

matters of inguiry committed to said

Committee; and you are not to depart without

leave of said Committee.

TO: Tim Lockett to serve and make

return.

Witness my hand and the

————

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APPENDIX F

A Presentation to

UNITED STATES

DEPARTMENT OF TRANSPORTATION

OFFICE OF GENERAL COUNSEL

MEMORANDUM IN SUPPORT OF

JAMES C. POPE'S REQUEST

FOR RETURN TO ACTIVE STATUS

IN THE DEPARTMENT OF TRANSPORTATION

Robert W. Fleishman

Stephen A. Fennel!

Shawn C. Conway

Steptoe & Johnson

Chartered

1250 Connecticut Avenue

Washington,

APPENDIX F

MEMORANDUM IN SUPPORT OF JAMES C. POPE'S

REQUEST FOR RETURN TO ACTIVE STATUS IN

THE DEPARTMENT OF TRANSPORTATION

INTRODUCTION/OVERVIEW

James C. Pope is a GS-15 aviation

safety expert in the Federal Aviation

Administration ("FAA"). He has provided

the FAA with fifteen years of conscientious

service, but, for the last two years, has

been an inactive employee. This memorandum

addresses Mr. Pope's years of service and

the acts and events that lead to his

present inactive status. It is intended

that the information presented will lead to

Mr. Pope's activation to a position in the

Departmen’ of Transportation reflective of

his talents, experience, and years of loyal

government service.

The chain of events resulting in

Mr. Pope's present inactive status began

during his service in the FAA's Office of

General Aviation ("AGA"). There, Mr. Pope

played a role for the FAA very similar to

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FAA-sponsored studies showed that

Mr. Pope's beliefs were well-founded. The

ACAS system was not only more reliable than

ground-based system, but also much less

expensive and available for immediate use.

During the period 1976-77, the FAA gave

little heed to his advice. Unfortunately,

an airliner crash in 1978 might have been

prevented by the ACAS system with a savings

of one hundred forty-four lives.

Mr. Pope's support of ACAS earned

him and the office in which he worked the

animosity of several top-ranking FAA

officials in the Carter Administration. In

June 1978, FAA Administrator Langhorne Bond

announced the disestablishment of that

office. Almost all of the personnel from

the office were reassigned to other offices

in FAA headquarters in Washington, D.C.

Despite the availability of other

positions, and the desire of career FAA

officials that he work for them :n those

positions, the political appointees in FAA

headquarters determined to transfer

Mr. Pope to Seattle, Washington, apparently

to punish him and to suppress his views.

Mr. Pope was the only member of the AGA

transferred against his will to an office

outside Washington.

In Seattle, a new position,

without duties, was created specifically to

accommodate Mr. Pope's transfer. He spent

over a year there unsuccessfully seeking

meaningful work. At the end of that

period, he decided that he should not

remain silent about the unusual

circumstances surrounding his transfer and

the creation of his position in Seattle.

He determined that the Agency's failure to

adopt the ACAS system or even to admit its

availability and reliability publicly

should not remain hidden behind his

1/ ee Exhibit 123.

transfer. His efforts to speak out on both

the transfer and the ACAS controversy

resulted in a series of swift and unusual

actions by the FAA in the closing days of

the Carter Administration.

The FAA's response to the

appearance of an article on Mr. Pope in the

Seattle Times on October 30, 1980, was to

reassign him to a new supervisor, who

inundated him with work. Immediately

following Mr. Pope's interview by the CBS

" the new

news program "60 minutes,

Supervisor began a memo campaign

criticizing and harassing Mr. Pope at every

conceivable opportunity. The barrage of

threatening memos intensified when Mr. Pope

was subpoenaed to testify before Congress

on ACAS.

The stark contrast between this

harassment and the exemplary personnel

record Mr. Pope had compiled during his

fifteen-year career with the FAA made the

motivation behind the actions transparent.

Nonetheless, the campaign reaped the result

it appears to have been calculated to

achieve. Mr. Pope was eventually

hospitalized on his physician's advice for

treatment of mental and emotional stress.

Even then, the harassment did not top.

Evidently thinking he had amassed a

sufficient paper record. Mr. Pope's

supervisor decided to remove Mr. Pope of

being “absent without leave” during his

hospitalization.

After his release from the

hospital and while continuing treatment,

Mr. Pope resolved to contest the removal

action. He filed a grievance to the Merit

System Protection Board. While that was

pending, the Federal Office of Workers’

Compensation Programs determined that he

was medically disabled as a result of on-

the-job stress and awarded him worker's

compensation benefits. The Federal

Government's Office of Personnel Management

reached a similar conclusion. Under a new

administration, the FAA withdrew its

accusations, agreeing to drop all charges

and purge Mr. Pope's personnel file of the

removal orders. Since that time, Mr. Pope

has continued receiving his worker's

compensation benefits.

The available evidence strongly

suggests that the acts of harassment and

retaliation against Mr. Pope cannot be

explained simply as the vindictive efforts

of an errant supervisor. Their connection

to the earlier transfer decision is

manifest. Although former Administrator

Bond had attempted to place Mr. Pope "out

of sight and out of mind," his successor,

J. Lynn Helms, was sufficiently aware of

Mr. Pope to comment to then

Congressman Robert K. Dornan in reference

to Mr. Pope: "I don't tolerate

whistleblowers.” Representative Dornan and

other members of Congress from both the

Senate and the House have appealed to

Mr. Helms and others to remedy the injuries

caused Jim Pope by the actions initially

taken by the predecessor administration.

Their efforts to date, have keen to no

aval

This memorandum is a continuation

of those efforts As Jim Pope recovers

from his disability, he is anxious to

return to a position of responsibility in

the Department of Transportation

commensurate with his experience, training,

and skills. Through a fuller description

of Mr. Pope's service record, the ACAS

controversy, and his exile to Seattle, the

remainder of the memorandum will

demonstrate that he deserves to be returned

to a responsible position and compensated

for the injuries he has suffered.

II. MR. POPE'S EMPLOYMENT BACKGROUND AND

EXPERIENCE

James C. Pope began public

service with the Federal Aviation

Administration ("FAA") in 1966 as a GS-14

Mechanical Engineer.?/ He was recruited?

to this position due to his exceptional

qualifications as a mechanical engineer, '!

pilot,’ and aviation safety expert .!/

2/ Exhibit l.

3/ Dr. Mervin K. Strickler, Jr.,

acknowledges’ that he and another FAA

colleague, Ralph R. Lovering, “actively

recruited James C. Pope from industry and

state service to join the federal service.

We felt we needed expert, objective points

of view. Jim Pope never disappointed us."

Affidavit of Mervin K. Strickler, Jr., 1-2

(Dec. 8, 1983). Exhibit 2.

4/ Mr. Pope earned a B.S. degree in

Mechanical Engineering from the University

of Minnesota, Institute of Technology. He

is Civil Service qualified in several

engineering disciplines: Aeronautical,

Aerospace, Electrical, Mechanical, and

General Engineering. Exhibit 3.

5/ Mr. Pope has been a pilot since 1946

and has an Airline Transport Pilot

Certificate with more than 5,000 flight

hours. He is an FAA certificated flight

instructor for airplanes, instruments, and

rotorcraft (helicopters). Exhibit 4.

6/ The majority of Mr. Pope's

(continued...)

6/(...continued )

professional experience has been in aviation

safety. Upon graduation from the University

of Minnesota, he served as safety

engineering supervisor for a large casualty

insurance company except for the period 1952

to 1953, when he performed engineering test,

and development work on jet engine controls.

In 1959, he was named Chief, Aviation

Safety, for the Nebraska Department of

Aeronautics. This position inciuded the

responsibility for flying the governor and

state executives. In 1964, Mr. Pope was

hired as Vice President of Engineering for

In-Flight Devices Corporation, where he

directed the manufacturing and marketing of

an Automatic Landing Gear Control which he

had designed and patented.

Robert A. Kauffman, Mr. Pope's

former supervisor as President and General

Manager of In-Flight Devices Corporation,

has gone on record since Mr. Pope's

difficulties with the FAA to dispel any

doubt concerning his capabilities and

competency as an engineer. Mr. Kauffman

summarizes Mr. Pope's professional

experience with In-Flight as follows:

From a period of April 1966

through November 1966, Mr. James

Pope worked directly for me in the

capacity of Director of

Engineering for IFD. His

responsibilities were broad and

included conceptual design,

prototype development and testing,

and finished product

certification. In addition he did

a majority of the engineering

(continued... )

Prior to his federal government service,

Mr. Pope had served as Chief, Aviation

6/(...continued)

Gratt ime ., laboratory

experimentation, ground and flight

tests.

Particularly significant were the

FAA designations’ as DER for

engineering and flight tests for

SAGA (Semi Automatic Gear

Actuator) systems.

During his tenure of employment,

Mr. Pope was responsible for more

than 12 STCs for the installation

of this system in various types of

aircraft.

It is of particular note that

during this period, Mr. Pope

pioneered a new approach with

Eastern Region on STCs that would

cover a variation of aircraft

rather than a single STC for a

given aircraft. An example would

be that the STC certification for

the SAGA system in the Bonanzas

covered all models from The A-35

through the V-35 on a single STC.

I found Mr. Pope to be a

dedicated, hard-working individual

with a high degree of integrity

and a sincere dedication to

aviation safety.

Letter from Robert A. Kauffman to James Pope

(Feb. 4, 1981). Exhibit 5.

Safety, for the Nebraska Department of

Aeronautics and as Vice President of

Engineering for In-Flight Devices

Corporation.!/ Mr. Pope was originally

hired as an FAA Mechanical Engineer to

Supervise the development of rules

governing crash-worthiness and passenger

evacuation. He later coordinated research

and development projects for the FAA's

Flight Standards Service in

Washington, D.C.

In 1972, Mr. Pope was promoted to

Chief of the Industry/Government Liaison

Division in the Office of General Aviation

("AGA"), which was created to deal with the

private aviation community. In this

capacity, he acted as a consumers' advocate

and an ombudsman for members of the general

aviation community .°/ As part of this

(Continued... .)

77 Exhibit 3. See also note 7, supra.

8/ Allan F. Landolt, the Assistant

Administrator for General Aviation and head

of the AGA from 1974-1976, explains the

history of the AGA and its role as FAA

ombudsman for the general aviation community

as follows:

The Office of General Aviation

Affairs was created within the

agency to address its

responsibility towards general

aviation. Its first acts were in

opening doors within the agency

which had previously been closed

to the general aviation community

and its needs. As a result of the

explosive growth of general

aviation and the failure of the

agency-developed programs, systems

and regulations to provide

adequately for general aviation

needs, serious problems arose and

in my judgment continue to plague

general aviation. Administrator

Jack Schaeffer, recognizing the

need to elevate the role of

general aviation within the

agency, instituted the Office of

General Aviation headed by an

Assistant Administrator answering

directly to him with voice and

vote in the top committees of the

agency on policy development,

regulatory matters, budcet and

personnel selection. During the

years I served with the agency, I

was that Assistant Administrator.

The Office of General Aviation

became in fact the general

aviation community advocate voice

and vote within the regulatory

(Continued eee wl

8/ (Continued . . . .)

agency. At the same time, the

office shared the responsibility

of the agency to promote and

foster safety and assure free

access to the airspace. As

responsible FAA employees, General

Aviation's staff presented general

aviation’s needs and interest in

the development of agency policy

and regulatory matters. Once

these policies and regulations

were adopted by the agency, the

Office represented the

Administrator before the aviation

community, amplifying his voice

and educating the public to these

policies and regulations. Simply

stated, the Office was the

advocate voice and vote, within,

and the catalyst through which

government, industry and the pilot

community worked to jointly seek

solutions to their problems.

Affidavit of Allan F. Landolt 1-3 (Nov. 12,

1980) (emphasis added). Exhibit 6.

Other FAA officials recognized the AGA's

role as an ombudsman. Tne Chief of the

Technical Analysis Branch of the FAA Office

of Aviation Safety has attested that:

The Office of General Aviation was

established to represent the

aviation industry within the FAA.

It acted as a sort of ombudsman

for the industry and this placed

it often at odds with other parts

of FAA.

Affidavit of Robert E. Jones 1 (July 1981).

Exhibit 7.

function, he analyzed every major FAA

research and development program affecting

general aviation. He took very seriously

his responsibility to protect the interests

of the flying public. !/

Mr. Pope's approach to his job

earned him a reputation for conscientious

work and effective problem solving. ?0/

9/ See Exhibit 8; see generally

Affidavit of James C. Pope (Aug. 25, 1982).

Exhibit 9.

10/ See Exhibit 8. This reputation is

affirmed by Mr. Pope's former supervisor in

the AGA:

James Pope typified [the AGA] and

in carrying out his

responsibilities as assigned by

me, waS assigned various priority.

programs that were being developed

within the agency. His

performance was consistently of

the highest quality. Reference to

his fitness reports, his quality

in grade pay raises and bonuses,

(continued... )

This did not go unnoticed by then FAA

10/(...continued)

certificates of achievement and

his many testimonial letters

received will document this

opinion. To my personal

knowledge, he made significant

contributions to many important

FAA programs. He was always

willing to stand up straight for

issues in which he believed and

which he thought best served the

public interest and safety.

xk * *

James Pope was an excellent FAA

employee while under my

supervision. While a member of

the bureaucracy, he has the

clarity of thinking, integrity and

character so that he will never be

a ‘bureaucrat’ in the invidious

meaning of that term, but will

perform his duties as assigned in

the highest manner as an able

member of the agency and as its

representative to the aviation

community. He is the type of

qualified, dedicated employee

needed in greater numbers by the

FAA and other federal agencies.

He should not be the object of

retaliation or reprisal for

carrying out assigned

responsibilities and for speaking

out for flying safety.

Affidavit of Allan F. Landolt 3-5 (Nov. 12,

1980). Exhibit 6.

Administrator Alexander Butterfield. In

1974, Mr. Pope was appointed Acting

Assistant Administrator for the aca. ll/

In this position, he was one of the five

highest-ranking officials in the Faz. 12/

III. THE MIDAIR COLLISION AVOIDANCE PROGRAM

CONTROVERSY

{

‘

11/ Exhibit 10.

Mr. Pope also spent three years,

from December 1967 to January 1971, as

Program Manager for the National Highway

Safety Administration, where he administered

$4.5 million in demonstration programs.

12/ In the course of his career with the

FAA and in particular his assignment as

Chief, Industry/Government Liaison, Mr. Pope

received numerous awards and certificates of

recognition both from within the FAA

(Exhibits 11-14) and from the General

Aviation Community (Exhibits 15-17). He

received ae certificate of Outstanding

Service from the Administrator of the

Federal Energy Office for management of the

General Aviation Fuel allocation program

during the 1973-74 energy crisis

(Exhibit 18). He has-7~ also received

recognition in other FAA performance ratings

(Exhibits 19-20), inter-office memoranda

(Exhibits 21-26) and a $1,000 cash award in

the Recognition and Awards Program

(Exhibit 27).

In his first year in the AGA,

Mr. Pope became involved in the evaluation

of several airborne collision avoidance

systems ("ACAS") being developed by private

13/

industry. An ACAS device is a small

electronic cockpit instrument that warns

pilots of potential collisions and helps

them make evasive maneuvers. They are

designed as a backup in case of failure of

the ground-based air traffic control system.

iss A very thorough explanation of the

ACAS concept and comparison of it to other

midair collision avoidance systems is

provided in Doherty, Collision Course,

Reason 37 (June 1982). Exhibit 28. See

also Exhibits 29-30.

14/ Mr. Pope has related the following

account of early ACAS development:

Early in the 1970's the General

Accounting Office investigated and

reported on the status of FAA

efforts to find a solution to the

mid-air collision problem. They

reported that significant

controversy existed regarding the

best approach and that the FAA has

insufficient analyses and

justification on which to base a

decision. They recommended the

(continued...)

14/

14/(...continued)

FAA perform additional analysis,

identify and justify their