Petition for Writ of Certiorari — Taxay v. Shaffer

Supreme Court brief1972

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; ; : | - Supreme Gouri ULS,

= 4 > = fe FILET!

INTHE °° 1 €

Supreme ( Court of the United States.

No. é i Lv 4 1 — i

EMIL P. TAXAY, M_D..

ee manana | : Petitioner,

—_ —_————

JOHN H. SHAFFER, Administrator of the

Federal Aviation Administration:

PETER V. SIEGEL, M.: D.. Federal Air Surgeon,

Federal Aviation: Administration: f

HARRY-M. FAULKNER, M. D., Regional Flight

Surgeon, Southern Region. Federal -

Aviation Adniinistration, : Sane

Respondents. —

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

ROBERT D. POWELL

- SMITH & PEPPER | '

1776-K Street, N.W.

Washington, D.C. 20006

Attorney for Petitioner

asmington D C - THIEL PRESS 202 393-0625 es

a (i)

‘TABLE OF CONTENTS.

ror ar Page ©

JUDGMENT BELOW ..... PRN ae Ao - 2, Appendix’ A

SURISDICTION 2... one eee Peo e 2

QUESTION’PRESENTED ......... 2.202... 05.00.. 2

STATUTORY AND — PROVISIONS INVOLVED | ge 8

. | Appendix B

“STATEMENT OF FACTS. SU Sn ea

REASONS. FOR GRANTING THE WRIT: es

A. The Action of Respondents in Refusing Redes-. »

2 _ ignation of Petitioner- as an AME, Constitutes ..

oa: an “Order” Reviewable under Section 1006 of | ae

the Federal Aviation Act of 1958 Direct eee ee oS.

* Due Process of Law Required a Hearing at Same =

_ Stage of the Proceedinghat the Administrative ”

- Level. 2... 2.2... Wes Aas eres b Nace ey ne ce

CONCLUSION: ....2.0:...@.....00 05. ewe ne ae

- “APPENDIX A - Judgment Below

APPENDIX B - Statutory and Rules Provisions .

§314(a) of the Federal Aviation Act of 1958, 49 US ¢.

1355(a) MOP ING, SEKAI cet RENE eas NNT TY Be hy Ib

ee SE enn Whey Rie Ib *

§ 1006 of the Federal Aviation Act of 1958, 49 USC. peas

MG =. ks eee ae as 1

'§183.15 of the Federal Aviation Regulations, 14 CFR a ee

183.15 ere ere er on tay Nats ot

_ APPENDIX C- Pertinent Correspondence | a.

- Letter of John H. Shaffer, October 23,1970............. lc

Complgint of Emil P. Taxay, M.D., July 8, 1970 ..+.:..... > 2c

_, Letterfof Harry W. Faulkner, M. D., March 25,1970 ./.... 13¢

_ Letter of J. N. Coker, Esq, Apri oiiedetaree 2 Nae.

—

i eee eis ON

3 ? .

. ‘ . -

a: . yh. : =

es ae ; (ii)

| Letterof IN. Coker, Esq., April 20, ene 5

Letter of Peter V. Siegel to Emil P. Taxay, M.D., - | 3

B- - pgel 24, 190 ©... eco en do ee ce a

| Letter of John H. Shaffer, June 16,1970. reo eine? 17¢

“Letter of Robert D. Powell, May 21,1970 .....--.--- a

| 1 "Letter of Peter V. Siegel, M.D., June Se

TABLE OF — |

IEE Bie EN Cb Aha

“Cases:

American Federation of Labor v. NERB, 308 US. 401°

~ (1940) eee eee eee ee Bee Agee nore ao 8”

: - Bratton v. Chandler, 260 US. 110 Ec. cones arenes ol

- |. Columbia Auto Loan v. Jordan, 196 F.2d 568 (D.C. Cir. aie

g as ay ges ee =~ = 710

a Columbia Broadcasting System, | Inc. v, U. s. 316 U s. ee —

: » 407 (1942) -...---: foot 5 teal eleng ee aa ee veces ow

Crocker v. U.S., 127 F.Supp. 568 (Ct. Cl. 1955) . pS ee 10

_. Environmental Defense Fund, Inc. v. a 39 Se

F.2d 584 (D.C.Cir. BE hae une ne kee see ss ae,

Goldsmith v. U.S. Board of Tax Appeals, 270 U.S. 117 |

ROT on Cy slab ta ea le heaeaiaa =“

Hornsby v. Allen, 326 F. 2d 605 (Sth Cir. 1964) Lae ee 11 -

In re Carter, 177 F.2d 75 (D.C. Cir. 1949), 192 F. 0d. 15 ; *s

(DC. Cir. 1951) cert. denied 342 US. 862. .....--- ee 11

International Navigators Council of America v. Shaffer, os

wo. 444 F.2d 904 (D.C_Cir. ee ae ee See:

Medical’ Committee for Human Rights v. Securities and’

Exchange Commission, 432 F.2d 659 (D.C Cir. 1970) iene. ©

Minkoff’ v. Payne, 210 F.2d 689 DCL. 1953)... ee -.-: 10

Morgan v. U.S. 304 U.S. 1 (1938)... - e+e Lo hea 11,12

< Opp Cotton Mills v. -Admirfstrator, 312°US. 126 (1941)... acy.

Pan American World Airways v. Civil ‘Aeronautics Board,

392 F.2d 483 (D.C. Cir 1955). .....- Ae roe eee ae a

Parker v. Lester, 227 F.2d 708 (9th Cir. 1955) ...---5 icc —*

(iti)

| ice ste

“Powell v. US., 300 US. 276 (1937) 2... 2.0-. se

" Réilly v. Pinkus, 338 U.S. 269 (1949) ae fp Bn Enh ae

Tadano v. Manney, 160 F.2d 665 (9th Cir. 1947) ........ 11

Wieman v. Undergraff, 344 U.S. 183 (1952)... 022... 10,

CONSTITUTIONAL PROVISIONS _ oe

_ 1. United States Constitution, Aimendnient V...... ices -. 8.

STATUTES . Ce ee ;

1. URE. NY) oo an ae ee '¥

- 2. 49 USC. 1355(a) PEP ere tater p Ty snipes 28,9, 12

eet ew keicees Ec : lat Appendix B, at 1b

cae i: ey ae wees 24,5,6,7,8

- : Appendix B, at 1b

UGE oo ns hen

ae oe ! A’ppéndix B, at 2b

FEDERAL REGULATIONS ed:

WORT noc ies epee i oe

: BOE RED eal Appendix B at 4b

OTHER AUTHORITIES, oa

1..K. Davis, esineiaie, of a Trial —_ Hearing, :

70 Harv. L: Rev. 193:(1956): seer ee

_ A

< eG

“IN THE

‘Supreme Court of the: United States

- No...

EMIL P. TAXAY, M.D.,

Petisicned .

Nes: JOHN H. SHAFFER, Asteialiatetanitns of ‘the

_ Federal Aviation Administration:

PETER V. SIEGEL, M.D.., Federal Air Surgeon,

Federal Aviation Administration:

HARRY. M. FAULKNER, M:D., Regional Flight

- Surgeon, Southern Region, Federal — .

+ Avjation Administration, ;

“Respondents. B59

.PETITION FOR A WRIT, oF CERTIORARI TO THE UNITED STATES.

COURT OF APPEALS FOR THE DISTRICT. OF COLUMEA CIRCUIT

- Petitioner, EMIL P. TAXAY, MD., respectfully prays that} ;

-a writ of certiorari issue to review the judgment of the | I. .

United States Court of Appeals. for the District of Columbia

Circuit, dismissing his petition for review of a action of the |

Federal Aviation Administration, entered i in this proceeding rat

_ ‘on November 16, 1971. nl |

| 7 ae es i ‘ ; l \

» eT .* e

ie tlc inlet a act? 48. me,

i ~—

- JUDGMENT BELOW |

The order and judemnent of the Court of Appeals, as yet

unreported, appears at Appendix A to this petition.

JURISDICTION

The order and judgment of the United States Court of

Appeals for the District of Columbia Circuit (Appendix A’

’ to this petition), was entered without opinion’on Novem-

ber 16, 1974. This petition for certiorari was filed ‘less

than’ 90 days from the date aforesaid. The jurisdictidh of

_ this Court is invoked under 28 U.S.C. 1254(1).

(/ QUESTION PRESENTED

Whether the United States Court of Appeals has jurisdic-

tion to review the action of the Federal Aviation Adminis-

tration whereby Petitioner was dénied renewal of his des-

ignation as an Aviation Medical Examiner.

STATUTORY AND RULES PROVISIONS INVOLVED

This case involves Section 314(a) of the Federal Aviation

Act of 1958, 72 Stat. 754, 49 U.S.C. 1355(a): Sec-

tion 1002 (a) of the Federal Aviation Act of 1958, 72 Stat.

788, 49 U.S.C. 1482(a); and: Section 1006 of the Federal

Aviation Act of 1958, 72 Stat. 795, as amended by 74 Stat..

255, 75 Stat. 497, 49 U.S.€. 1486.

These are reprinted in pertinent pari in Appendix B to

this petition.

. STATEMENT OF FACTS |

Petitioner, Emil P. Taxay, M.D., is a physician practicing

* medicine in Coral Gables, Florida. Dr. Taxay was initially

designated by the. Administrator of the Federal Aviation

Administration to act as asSenior Aviation Medical Exam-

iner (AME) in August, 1961. His designation was renewed -

. annually and he served as-an AME until March 30, 1970.

By letter dated March 25. 1970, Respondent Harry W.

Faulkner, M-D., Regional Flight Surgeon of the’ Southern

Region of the Federal Aviation Administration (FAA).

informed Petitioner that “it would not be in the best

interest of the Federal “Aviation Administration to reap-_

point” him as an Aviation Medical Examiner.'- No fur-

ther explanation of your, Petitioner's: dismissal as an AME

was Offered at this time. € ge

In reply to inquiry as to the -basis for the dismissal + .

Regional Counsel to the Southern Region of the FAA,

J. N. Coker, Esq., advised counsel for Petitioner that “it is

believed that you [@unsel]. ‘and Dr. Taxay are aware of

the reasons for such determination.”? Counsel for Peti-

_tioner pursued” his inquiry and was adyised by Mr: Coker

on April 20, 1970,? that Petitioner was refused redesigna- _

tion as an AME because he. had appeared as an expert

- medical witness at hearings of the National Transportation

Safety Board in’ opposition to positions taken by ‘the

Administrator, and because he had consulted on individual

cases with legal counsel for airmen. - 7

By letter of April 24, 1970.4 Respondent Peter V. Siegel.

M.D., Federal Air Surgeon, stated that the refusal to redes-

ignate your Petitioner was engendered by Df. Taxay’s

cooperation with airmen. Respondent Shaffer, by letter

dated June 16, 1970.5 restated the position of the FAA

in dismissing your Petitioner. hia

Upgpendtie Se infra, p.13¢ - : é

~ * Appendix C, infra, p. 14¢ | |

* Appendix C, infra, p. 15c ;

*Appendix C, infra, p. 16c —

“Appendix C, infra, }y. 17 :

Petitioner’ Ss counsel sought an opportunity to. present

information to the FAA,°® and his request was denied on

June 10, 1970.7

In an effort to exhaust all avenues of ‘adsninietrative

review before pursuing court action, on’ July 8; 1970,

Petitioner complained under the. apparent authority. of.

$1002* of the Federal Aviation Act of 1958,. - seeking

reversal ‘of: the -efusal to redesignate, or, in the alternative,

an investigation by way of evidentiary hearing in order to

make a record.® -

Respondent Shaffer referred -the complaint to an indepen-

dent office, and, by letter dated October 23, 1970,'°

advised Petitioner’s counsel of his conclusion that there was

no reasonable basis for reversal of the decision of Drs. Siegel

and Faulkner, and that he was of the further opinion that

the complaint did not contain facts which would warrant

further investigation.

‘On’February 16, 1971,-your Petitioner outa review ; by

the Court of Appeals of Mr. Shaffer's: final administrative

determination, in accordance with the provisions of § 1006

of the Federal Aviation Act of 1958."'

‘In another matter, the Court of Appeals for the District

of Columbia Circuit, by opinion dated April 14, 1971, held

‘that the assertion made by the Administrator of the FAA,

that a complaint filed against him under § 1002 of the Fed-

eral Aviation Act!? is cutee the scope of the complaint ‘

7 Appendix C, infra, p. 24c

® Appendix B, infra, p. 1b

* Appendix C, infra, p. 2c

' appendix C, infra; p. Ic

1! Appendix B, infra, p.2b -

"2 Appendix B, infra, p. 1b

e 5

provision, does not constitute.an “order” reviewable by the

_ Court of Appeals under § 1006 of that Act!? (dnternational

Navigators Council of America y Shaffer, 444 F.2d 904

[D.C.Cir. 1971}), — * : .

In its order and judgment in this proceeding, dated Novem-

ber 16, 1971, the Court of Appeals dismissed your Peti-

tioner’s complaint without Opinion,’ based ‘upon its

decision in International Navigator's Council of America y.

Shaffer. "s 3 ;

: REASONS FOR GRANTING THE WRIT

A. THE ACTION OF RESPONDENTS IN REFUSING ©

REDESIGNATION OF PETITIONER AS AN AME

CONSTITUTES AN “ORDER” REVIEWABLE «a

UNDER SECTION 1006 OF THE FEDERAL AVI-.

. ATION ACT OF 1958:

As noted above, Petitioner sought reconsideration of

the Administrator’s decision of dismissal by ‘filing a com--

plaint under Section 1002 of the Federal Aviation Act of

1958.'° The complaint requested reversal of the refusal. *

to redesignate or, in the alternative, an investigation by

way of evidentiaty hearing.. The filing of this complaint

with the Federal Aviation Administrator was a good faith -

effort on the part of Petitioner to exhaust his administra-

tive remedies before seeking the assistance of the courts.

The filing of both the complaint and the petition for review

of the FAA’s refusal to redesignate Petitioner took place

prior to the decision issued by the Court of Appeals for

'’ Appendix B, infra, p. 2b

'? Appendix A, infra.

'S Supra.

'© Appendix B. infra, p. Ib

Doorn

MUST MAS EO Bor

. 3

Tele

cpa BORN Ose

Cn ee ee

the District of Columbia in International Navigators Coun-

cil of America v. Shaffer.'7_ Thus, Petitioner was without

the benefit of the Court’s interpretation of Section 1002

in that case- when he filed his original. complaint and the

action in ,the Court of Appeals. t

In /nternational Na vigators Council of America v. Shaffer

(INCA), the Plaintiff had filed a complaint under Section

1002 of the Federal Aviation Act of 1958, alleging violation

of that Act by the Administrator in failing to issue-certain

regulations, among other things. The Administrator deter-

mined that the complaint was inappropriately filed under —

Section 1002, and treated the complaint as a petition for

rulemaking. Plaintiff sought review by the Court of Appeals

of the disposition of his complaint, alleging that the dis-

position constituted an “order” reviewable by that Court

under Section 1006 of the Federal Aviation Act. The Court

dismissed the action, hokding that the determination made

by the Administrator as to the disposition of the complaint

was not a reviewable “order” under Section 1006.

_In a sense, thsContplainant in the INCA case was endeav-

oring to manufacture jurisdiction where none had existed. |

Your-Petitioner, however, seeks judicial review of the decis-

ion of the Administrator to not redesignate Petitioner as an

‘Aviation Medical Examiner. Although it is true that Peti-

tioner filed a complaint upder Section 1002, it is not the

disposition of that complaint which the Petitioner seeks to

be reviewed by the caqurts, but rather, ‘the basic decision not

to redesignate. It is the contention of your Petitioner that -

the-action of the eral Aviation Administration, as car-

ried out by*the Regional Flight Surgeon, the Regional

Counsel, the Regional Director, the Federal Air'Surgeon

and-the Administrator, constituted an “order” reviewable °

by the Coust of Appeals for the District of Columbia Cir-

cuit under Section 1006 of the Federal Aviation Act.'®

_ "Supra, p. 5

'8 Appendix B, infra, p. 2b

The action of the FAA fits the definition of a review-

able order as expressed by the Court of Appéals: for the

- District of Columbia Circuit in a number of its recent

_ cases.'? The test to which that Court has subscribed |

might be summarized as whethef the administrative action

‘operates with final effect upon.a particular individual entity .

or group.7° There can be no doubt that the action a

respondents has kad afinal affect on Petitioner. His des-

_ ——\—ignation as an Aviation Medical Examiner clearly has been

: termfated by the officials of the Federal Aviation Admin-

istration,.and~in particular. the Administrator, who has the

‘final -or ultimate authority under the Regulations which

F govern.?! ,

Your Petitioner respectfully submits that his good faith —

efforts to exhaust his administrative remedies should not —

preclude judicial review of the action whereof he was com-_

plaining. The interpretation of Section 1002 rendered by —

the Court of Appeals in the INCA case led to the dismis-

. sal of that Complainant’s efforts to create jurisdiction by

Bee a “bootstrap” method where jurisdiction did not already

- €xist. The interpretation of Section 1002 of the Fedéal

. Aviation Act of 1958 should not be so broadened by the

* Court of Appeals as to embrace.all situations in which a-

person files a complaint under that ‘Section, whether mis-

takenly or’ otherwise. In the Petitioner’s Situation, At is

submitted that the substance of the action of whifh he

complained should determine the applicability of the juris:

dictional section: of the Federal Aviation Act, and not the

- '? Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584

~ (DL.Cir. 1971); Medical Committee for Human Rights v. Securities

and Exchange Commission, 432 F 2d 659 (DC. Cir. 1970): Pan Amer- ©

ican World Airways, Inc. v. Civil Aeronauticé Board, 392 F 2d 483

(D.C. Cir. 1968). © 7 |

2° Ibid

*" Section 483.15 of the Federal Aviation Regulations (14 CFR.

183.15), Appendix B, infra, p.4b .

“ AM ORL its At Mt cmea hab

@ ant ee ie

- aaa’

hee of his complaint. wm The action by the Respondents

_.in-alt Téspects meets: the definition of a reyiewable order

and, therefore, should be’ subject to review by the Court

of Appeals despite the: fact that Petitioner, in the course —

of his efforts to seek reconsideration of his dismissal, filed

a complaint. under the apparent authority of Section’ 1002.

B. DUE PROCESS OF LAW REQUIRED D A HEARING AT

“= "SOME STAGE OF THE PROCEEDING AT THE ADMIN:

ISTRATIVE LEVEL. \

In denise Petitioner’ s action, the Court of Appeals

rejected the argument that Section 314 of the Federal Avi-

ation Act of 195873 does not supplant the constitutional

right of due process under the Fifth Amendment of the

Constitution.** Section 314(a) pertains to the authority

of the Federal Aviation Administrator to properly quality

‘private persons to perform any work, business or function _

respecting examination, inspection and testing necessary to

issuance of certificates, including airman medical certifi-

cates. That Section states in part that the Administrator

“may rescind any delegation made by him pursuant to’ this .

subsection at any time and for any reason which he deems

appropriate.” i:

Petitioner contended before the Court of Appeals that

Section 314 did not give the Administrator of the FAA

authority to rescind delegations’ made by him without

regard to the due process clause of the Constitution. Your

Petitioner contends here that the rejection of this argument’

by the Court of Appeals raises a substantial federal ques-

22S¢¢ Columbia Broadcasting. System, Inc. v. U.S., 316° U. s. 407,

416 (1942); American Federation of Labor v. NLRB, 308 U.S. 401,

~ 408 (1940); Powell v. U.S., 300 US. 276, 285 (1937).

23 Appendix B, infra, p. Ib

” ‘Constitution of the United-Statés, Amendment V.

—

tion in the interpretation of Section 314 of the Federal

Aviation Act.25 -

A case directly: in point. is Goldsmith vy. U.S. Board of

Tax ApfWals, 270 U.S. 117 (1925). In that- case, Gold- _

smith, a Certified Public ‘Accountant, applied for admission

to practice before the Board of Tax Appeals. The Board’s.

‘rules made eligible for admission any attorney at law

admitted to any Federdl or State Court in the United

States as’ Well as any duly qualified C.P.A. The rules went

on to require that an applicant give an oath, provide his

*name, residence, qualification information and whether he

had been disbarred or had had his certification revoked.

_ The rules further ‘stated that the “Board may, in its dis- ©

cretion, deny admission to any applicant, or suspend or.

disbar any person after admission.” Goldsmith applied,

was denied, and filed an action seeking mandatory relief.

Simply stated, the issues before the Court were whether

Goldsmith was qualified to apply’ and whether’ the discre-

tion alluded to in the Board’s rules would obviate the

necessity for a trial-type hearing. - The Supreme Court

~ found Goldsmith qualified and. found that the Board’s

action had .deprived him of: due process of law. The

Court said: me Satie

“[T] he Board may, in its discretion, deny admis-

sion, suspend or disbar any person.” But this must

be construed to mean the exercise of a discretior?

to be exercised after a fair investigation, with such

notice, hearing and Opportunity to answer for the.

applicants as would constitute. due process. (Gold-

smith, supra, at p. 123, emphasis supplied.)

That this cage is appropriate for consideration on these

facts is a foregone conclusion. What makes it stronger js

- that the Goldsmith case dealt with promulgated rules. In

the instant Situation, there are none. As was Goldsmith,

Petitioner is qualified to serve in the position which he

?S Appendix B; infra, p. 1b

STEEN toc Eo aie

Ze:

oo seeks. He has been serving the Administrator well in that

capacity for almost nine years, yet the Administrator has

made a wholly discretionary and, it is submitted, arbitrary

decision to refuse renewal of his designation without

affording Petitioner -notice of the charges against him or

the opportunity to answer those charges at a hearing, and

without supporting his decision with substantial evidence.

The-charge agairist Petitioner that ‘is ‘stated as the cause

for which the Administrator refused to renew Petitioner’s |

_ designation is a serious one. He is charged with professional

dishonesty, for he is charged with‘placing himself in a con-

flict of interest situation. There are serious professional *

ramifications to this charge, as well as economic. impact.

He has‘been given no chance to face his accusers, offer

explanations, discuss facts, cross-examine witnesses or pre-

sent witnesses in his own behalf. He was merely given

the opportunity, through counsel, to write a letter to an

. attorney in the Admiinistrator’s office, setting forth some

‘ a cursory note fromthe Federal Air Surgeon.”° Petiti

portion of his side of the story. In exchange he rec ee

has never had his say and is being deprived ‘of dug process -

of law. , Seg .

. The ‘Court’s attention. is 5 enpuetlidiy directed ‘to a

acsinst exposition of the law on the subject matter at

hand. °We have reference here to K. Davis, Requirement

of a Trial Type Hearing, 70. Harvard ’ Law Review 193

(1956): Professor Davis; in this-exhaustive work, covers

the case law up until 1956 on this point. For the pur ~

pose of aiding the Court in further exploring the law, the

Court’s attention is further directed to the cases of Crocker

D. US, 127 F.Supp. 568 (Ct. Cl. 1955); Parker v. Lester, /

227 F.2d 708 (9th Cir. 1955); Minkoff v. Payne, 93 US.

App.D.C. 123, 210 F.2d 689 (D.C.Cir. 1953); Columbia ‘8

Auto toan y. Jordan, 90 U.S.App. D.C. 222, 196 F.2d 568 ©

_(D.C.Cir. 1952); Wieman v. Undergraff, 344 US. 183

26 Appendix C, infra, p. 24c

(1952): In re Carter#89 U.S. App. D.C. 310, 192 F.2d 15

.(1951), cert. denied 342 U.S. 862; In: re CarterS85-US.

*. App. D.C. 229, 177 F.2d 75 Crome, monnen ». Chandler, |

260 U.S. 110 (1922),

The Fifth Circuit has offered a brief course on due pro-

cess in administrative proceedings at page 608 of its opin-

_ ion in Hornsby v. Allen, 326 F.2d 605 (Sth Cit. 1964),

. -The court stated that:

Due process in administrative proceedings of a

judicial nature “has been said generally’ to. be con-

formity to fair practices-of Anglo-Saxon jurispru-

dence (see Tadano v. Manney, 160 F.2d 665, 667

[9th Cir.. 1947]-), which is usually equated with

adequate notice ‘and a fair hearing (see Opp Cot- ;

ton Mills y. Administrator, 312 U.S. 126, 61 S.Ct. -

524, 85 L.Ed. 624 [1941 1). ‘Although strict adher-

ence to’ the ‘comnyon law rules of evidence at thes. .

hearing is net required, . . . the parties must gen-

erally be allowed an. opportunity to know the claims

of the opposing party (Morgan y. United States,

* 304 U.S. 1, 58 S.Ct. 773,°82: L.Ed. 1129 [1938]),

to present evidence to ‘support. their contentions ~

(see id. 304 U.S. at 18, 58 S.Ct. at 776, 82 L.Ed.

1129), and to cross-examine’ witnesses for the other

side (Reilly v. Pinkus, 338 US. 269, 70 S.Ct. 11Q,

94 L. Ed. 63 [1949]).

‘It is submitted that examination of the facts of Peti-

tioner’s case reveals that: the Administrator has Observed. -

none of these elements of administrative due process in-

his handling of the miatter.

Petitioner herein *adopts ‘the position stated by the

Supreme ‘Court in Morgan y. Uz S.,° 304 U.S. 1 (1938).

wherein it was Stated: .

. The vast expahsion of this field of administrative «

regulation i in response to the pressure of social needs

is made possible under our. system by adherence.

to’ the basic, principles that the legislature shall

appropriately determine the standards of adminis:

12.

“

trative action and that in an administrative pro-

ceeding of a quasi-judicial character the liberty and

property:-of the citizen shall be protected by the

rudimentary requirements of fair play. (Morgan,

supra, at 14-15.)

The Morgan Court found that these daitenitabets of fair .

play demand a fair and open hearing to assure both the.

legal validity of, and public confidence in, the value and

‘soundness of the administrative process. The C ourt —

described a-hearing held ufder these circumstance® as an

“inexorable saféguard” (Morgan, supra, at 14). Petitioner

- submits that such a safeguard is essential to his: case as’

~ well.

Petitioner respectfully submits that the dection of ‘the

Court of Appeals for the District of Columbia Circuit dis-

missing this case for lack of jurisdiction grants the Admin-

- istr#tor of the FAA absolute discretion, unfettered by the

requirements of the Fifth Amendment of the Constitution,

as’ interpreted; by this Court, to rescind a designation made °

} under $314 gf the Federal Aviation Act. This reading of

7 § 314 raises an. obvious federal question of considerable .

import which’ should be decided by this Court.

= _ CONCLUSION

For these reasons, a writ of certiorari ‘should issue to..

review the judgment -and order of the Court of Appeals

for the District of Columbia Circuit:

“Respectfully submitted,

ROBERT D. POWELL *

SMITH & PEPPER == «+ Counsel for Petitioner.

1776 K Street, N. W.., 7 .

Suite 700

Washington, D.C. 20006

Télephone: 296-0600.

February’ 14, 1972

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—_

/ ’ APPENDIX A

[Filed November 16, 1971]

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

[no opinion}

_ September Term. 1971

EMIL P- TAXAY, M_D.. i

Petitioner

<= | No. 24,837

JOHN H. SHAFFER,

Administrator of the “rf

- Federal Aviation *

* Administration, €t ab..

e Respondenty

Petition for Review of an Order of the

> Federal Aviayon Administration |

Before: DANAHER, Sétier Circuit Judge. arid MCGOWAN

and TAMM. Circuit Judges. 5

JUDGMENT.

This case came on to be heard on the record from the

Federal Aviation Administration, and was argued by -cotin-

sel. While the issues presented occasion no need for an

opinion, they have been accorded full cogsideration by the

Court. See Local Rule 13(c). Upon consideration of the

foregoing, it is , ‘

ORDERED AND ADJUDGED by this Court that the

_ petition for review herein is hereby dismissed for lack of

jurisdictjon. See International Navigators G ouncil of -

{OTT Ae RP RT &: a

e “ge

- America v. Shaffer, US. App. D.C. - .444.F.2d -

“904 (1971). ee: |

7 | cS Per Curiam.

Dated: November’ 16, 197]

Ib ;

APPENDIX 'B

SECTION 314(a) OF THE FEDERAL AVIATION

. ACT OF 1958, 49 U.S.C.

$1355. Delegation of Powers’ and Duties to Private |

Persons; Application for Reconsideration

(a) In exercising the powers and duties vested ‘in him—_

by this chapter, the Administrator may, subject to such —

regulations, supervision, and review as he may prescribe,

delegate to any properly qualified private person, Or to any -

employee or employees under the supervision of such per-

_ Son, any~ work, business, or function Tespecting (1) the

' examination, inspection, and testing necessary to the

issuance of certificates under. subchapter VI of this chapter,

and (2) the issuance of such certificates in accordance with

standards established by him. ‘The Administrator may

establish the maximum fees which such private persons

may .charge.for their services and may rescind any dele-_

gation made by him: pursuant to this Subsection at’ any

time and for‘any reason which he deems appropriate.

SECTION 1002(a) OF THE FEDERAL AVIATION .

ACT OF 1958, 49 U.S.C.

$1482. Complaints to and Investigations by the Adminis-

frator’ and the Bgard—Filing of Complaints: |

Complaints Against Members of the Armed

Forees ‘

(a) Any person may file with the Administrator -or the

Board. as to matters within their respective jurisdictions: a

complaint in writing’ with respect to anything done or

omitted to be done by any person in.contravention of any

provisions of this chapter, or of any requirement established

pursuant thereto. If the person complained against shall

not satisfy the complaint and there shall appear to be any

reasonable ground for investigating the complaint, it shall

be the duty of the Administrator or the Board to investi-

gate the matters complained of. Whenever the Administra-

Ma ie |

>»

tor or the Board is of the opinion that any complaint does

not state facts which warrant ‘an investigation or action,

such complaint may be dismissed without hearing. In the

case Of complaints against a member of the Armed Forces

of the, United States acting in the. performance of his

official! duties, the Administrator or the Board, as the case

may be, shall refer the complaint to the Secretary of the

_ department concerned for action. The Secretary. shall,

— within ninety days after receiving such a.complaint, inform

the: Administrator or the Board of his disposition of the

‘ :complaint, including a report as to any corrective or dis-

ciplinary actions taken. . eo

SECTION 1006 OF THE FEDERAL AVIATION

- ACT OF 1958, 49 U.S.C.

$1486. Judicial Review—Orders Subject to Review:

' - Petition’ for Review :

(a) Any order, affirmative or negative, issued by the

Board or Administrator under this chapter, except any

order in respect of any foreign air carrier subject to the

approval of the President as provided in section 1461 of

this title, shall be subject to review by the courts of appeals

’ of the United. States or the United States Court of Appeals

forthe District, of Columbia upon petition, filed within

sixty days after the entry of such order, by any person

disclosing a substantial interest in such order. ‘After the

expiration of said sixty days a petition may be filed only

by Jeave of court upon a showing of reasonable grounds —

for failure to file the petition theretofore. -

ts _ Venue -

(b) A petition under this sectign shall be filed in the

_ court far the circuit wherein the petitioner’resides or has

; his principal place of business or in the United States Court

.- Of Appeals for the District of Columbia.

; . 3b

Notice. to Board or Administrator; Filing of Record

with transmitted to the Board or Administrator by the

clerk of the court, and the* Board or Administrator shal]

thereupon file in the court the record, if any, upon which

the order complained of was entered. as sarees in sec-

~ tion 2112 of Title. 28. “

Sis of G ourt

(d) Upon transmittal of the’ petition to the Board or

‘Administrator, the court shall have exclusive jurisdiction

to affirm, modify, or set-aside the order complained of,

’ in whole Or in part, and if need be, to order further pro-

ceedings by the Beard or Administrator. Upon good cause

shown and after reasonable notice to the: Board or Admin-.

istrator, ‘interlocutéry relief may be granted by stay of the

-order or by such ey or ‘other relief as may be

“~ appropriate.

Conclusiveness of Findings of Fact; Objections

(e) The findings of facts by the Board or Administrator,

if supported by ‘substantial evidence, shall be conclusive.

No objection to an order of the Board or. Administrator

shall be considered bythe court unless such qbjcction shall

have been urged before the Board or Administrator or. if

it was not so urged, unless there } were reasonable grounds ,

_ for failure to do so. :

Ret iew by Supreme Court

(f) The judgment and decree of the court aftirenine, .

modifying, or setting aside any such. order of the Board -

or Administrator shall be subject only to review by the -

Supreme Court of the United States upon certification or a

certiorari as provided in section 1254 of Title 28...

“See.

* at ’

PLES LEM LOTR NS INT PERT SEER | RR TSR en tet

_ 4b

- SECTION 183.15 OF THE FEDERAL AVIATION

REGULATIONS (14 CFR 183.15).

$183.15 Duration of Certificates.

(a) Unless sooner terminated under paragraph (c) of this

section, a designation as an Aviation Medical Examiner is

effective for | year after, the. date it is issued, and may be

renewed for additional periods of | year in the Federal Air

Surgeon’ 's discretion. A renewal is effected by a letter and

issuance, of anew idetifification card specifying the renewal

period: — :

(b) Unless sooner terminated under paragraph (c) of this

section, a designation as a Flight Standards Designated

Representative is effective for one year after the date it is

issued and may be renewed for additional periods of one |

year ‘in the Administrator’ s descretion.

.(c) A designation made. under this- subpart ecanacalles—

(1) -Upon the written request of the representative;

(2). Upon the written request of the employer ir

any case in ‘which the recommendation of the employer is

required for the designation, . ”

(3) Upon the ‘Tepresentative being separated from

the employment of the employer who recommended him _

for certification; : is

(4) Upona finding ‘by the Administrator that the

representative has not properly performed his duties under

the designation;

: (5) Upon the assistance of the representative being

no lon er needed by the Administrator; or |

(6) For any reason the Adntinistrator considers

appropriate,

ea : Ic foe ee ‘

APPENDIX C.

DEPARTMENT OF -TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, D.C. 20590

Robert D. Powell, Esquire October 23. 1970

Smith, Pepper, Shack and L’Heureux_

- 1776 K Street, N.W.

Washington, D.C. 20006

Re: The Matter. of the. Complaint of Emit F.

Taxay, M.D.

Dear Mr. Powell:

“This is in reply to the Complaint of 8 July 1970 filed by —

you concerning action taken by the Federal Aviation

Administration declining to redesignate Emil P. Taxay,

_ M.D., as an Aviation Medical Examiner.

-Upon receipt of the Complaint, we ‘caused it to be referred

_ for consideration by an Office unrelated to either the Office

‘of Aviation Medicine or the Office of the General Counsel.

That. Office has furnished to us. and we have reviewed,

their independent evaluation | and recommendation con-.”

cerning the action. taken by Dr. Peter V. Siegel, M.D., the

Federal Air Surgeon, and Dr. Harry Faulkner, M.D.. Regional

Flight Surgeon. Southern Region, under authority delegated

to them. From a review and consideration of both the

Complaint and the report, we have concluded that, there -

does not exist any - ‘reasonable basis for reversal of the

. decision made by Dr. Siegel and Dr.. Faulkner not to-

redesignate Dr. Taxay. - - 7 7s '

‘As we are of the opinion that the Complaint does: not con-

‘tain facts which would warrant further investigation, we

therefore consider this matter dismissed | without the neces-.

sity for additional action. by

Sincerely, J.H. Shaffer, Administrator

f. . +

RA RRL AASV. ia is

2c : : L

T= COMPLAINT

Comes now Emil P. Taxay, M. D. (hereinafter “Plaintiff” ),

by his attorneys, and files this Complaint, pursuant to Sec-

tion 1002(a) of the Federal Aviation Act of 1958, as

amended, against John H. Shaffer, Administrator. of the

Federal Aviation Administration; Peter V. Siegel, M.D”,

Federal Air Surgeon of the Federal Aviation Administration;

and Harry V. Faulkner, M.D., Regional Flight Surgeon for

the Southern Region of the Federal ‘Aviation Administration.

- ff. Plaintiff is currently practicing medicine in Miami,

Florida. He is a° Diplomate-of the American Board of

Internal Medicine -and specializes in both internal medicine —

and cardiology. Plaintiff sees approximately 150 patients

a week, about 15 per cent of whom are pilots. He is on

the staff.of four hospitals in the Miami area. He has served

on the faculty of the University of Miami School of

Medicine, both as an instructor and assistant professor.

Plaintiff holds memberships in a number of local, national

and international medical associations and has published

over ‘twenty -articles in medical-journals. He served four

years active and nine years reserve duty as.a flight surgeon

with the U.S. Air Force: Plaintiff's academic record: is.

excellent. He éntered thé University of Cincinnati at age

fifteen, graduated at item eighteen, and received-a*Master’s

degree in chemistry at age nineteen. He then entered medi- .

cal school .at Cincinnati and graduated ‘in 1954. He. was

honored, by receiving an internship at Walter Reed Army

—_

a — 3c sy

Hospital, a much coveted position. A copy of Plaintiff's

curriculum vitae is attached hereto as Attachment A.

2. Plaintiff was originally designated as a Senior Aviation

. Medical -Examiner (AME) by the FAA on August 7,. 1961.

In this capacity he has examined approximately 100 airmen

a year to determine their qualifications for medical certi-

fication under Part°67 of the Federal Aviation Regalations:

Plaintiff cannot recall any occasion during the time si ce

‘his designation when he was advised by the FAA that

work was unsatisfactory. In fact, Plaintiff has been otaived

- by’ FAA officials for his work as an AME (see Attachment

. tiffs record of activity as an AME and that “it would not

B). To his credit, Plaintiff has attended all: required

refresher courses in aviation medicine and for Several years

has voluntarily participated in the FAA— —sponsored Air

Traffic Control Program and the FAA— Semeur: Accident

Investigation Program.

3. On- March 29, 1970. Plairitiff received a letter _— , |

Dr. Harry/Faulkner, Regional Flight Surgeon for the South-

ern Region! of the Federal Aviation Administration, dated

March 25, 1970, notifying Plaintiff that his designation as -

an AME would not be renewed and that his function as

such would terminate as of March 30, 1970 (see Attach-

ment C). Dr. Faulkner stated that he had reviewed Plain-

be in the ‘best interests of the Federal Aviation Adminis-

fration to reappoint [him] as = Medical. EExam-

iner.””” No other reason was given.

4. On March 30, 1970, Plaintiff engaged the undersigned;

Robert D. Powell, Esq., to aid him in attenipting ‘to regain

his designation. On April 6, 1970, Mr. Powell, on behalf. ;

of Plaintiff, wrote to Dr. Peter V. Siegel, Fetleral Air Sur-

geon for the Federal Aviation Administration, to .request -

reconsideration of Dr. Faulkher’s action (see’ Attachment

D). On April 7, 1970, Mr. Powell wrote to Dr. Faulkner’

‘\

_Tequesting a definite statement of the reasons for Dr.

- Faulkner’s refusal to redesignate Plaintiff (see Attachment

‘E). Mr. Powell’s letter to Dr. Faulkner was referred to. |

EFL AE PSPS Ore

* fe n= = Sai

ee ees 4c ae = 3, ee

IN. Coker, Esq., Rediowil Counsel for the Southern Region.

of the Federal Aviation Admiréstration, for reply: In..

_ response to the request ‘for a definite statement of reasons,

Mr. Coker replied: “It is believed that you and Dr. Taxay

are aware of the reasons - ‘for such determination.’ (see

Attachment F)...

5. On April 3, 1970. Mis ‘Powell wrote to Mr. eaker

" to again request specific reasons for Dr. Faulkner’s refusal,

to redesignate as Mr. Coker’s first.letter was deemed an —

insufficient explanation (see Attachment G). Mr. Coker

responded to this further request by letter dated April 20,

1970 (see Attachment H). His letter was brief, considering

the’ gravity of the action, taken, and contained misinterpre-

tations of the situation involved. In the second paragraph

‘of his letter, Mr. Coker implies that Plaintiff has appeared -

in National Transportation Safety Board proceedings on -

contested medical certification cases as an expert witness -

in opposition to the FAA while characterizing himself as

‘a represeritative | of the Administrator.. ~ This is simply |

untrue, as an impartial review of the facts would: clearly

show. Further, Mr. Coker states that Mr. Powell has used,

and is using, Plaintiff as a consultant “in opposing the

Administrator” in contested cases. This.statement is also.

a half-truth, the, unfavorable implications: of which. can

easily be: dispelled by an examination of Plaintiff's dealings

with Mr. Powell. :

6. Dr. Siegel exhibited this same attitude in his jJetter to

Mr. Powell dated April 24, 1970 (see Attachment 1).. There

‘he stated: “I do not need to go into great detail with you

since you, know that it is difficult for an individual to both

serve aS a representative of the Administrator and as a

répresentative against the Administrator.” © Dr. Siege! also

wrote to Plaintiff on April 24 and charged: him with serving

on a regular-basis as a paid consultant to attorneys opposing

the Administrator (see Attachment J). Clearly. Dr. -Siegel

has charge Plaintiff with a conflict of integest, an ethical

rat quens Plaintiff's fitness to serve as an

i 4 .

PES

AME. Dr. Siegel’s statement that such a charge is no

reflection on’ Plaintiff is untrue; it is clearly a yeflection

‘on; and impugnation of, — professional ethics. and

character. “2 i - 2

, 7. The Redeial Aviation Administration. hi¢ expanded

on its position with regard to Plaintiff inetters directed to

United States Senators who had inquis® about the situation —

. at Plaintiff's request. On April 9,°1970, Jamés: Rogers,

Director of the Southern Region for the Federal Aviation,

- Administration, wrote to the Honorable Spessard L. Holland °

(see Attachment K). Mr. Roger’s letter is a classic example

of the use of half-truths and innuendo that is damaging to

‘Plaintiff's professional reputation. In paragraph 4, Mr.

Rogers berates Plaintiff for aiding Mr. Powell'in develoting -

a case against the Administrator in the instance of a pilot.

whom. “the Administrator does ngt feel is qualified” for

medicak certification. This pilot j not identified by Mr.

Rogers, but Plaintiff believes he knows to whom Mr. Rogers

is refefring. Plaintiff's sole activity’ in this case’ was per-

formance of a physical examination and a flight test, after _

. . which he denied the pilot certification ‘because of the

- Administrator’s expressed position on the case, forwarding

the results of the examination to the Regional Flight Sur-

geon for further action. . Fo date, -the Regional Flight

_ Surgeon and the Federal Air Surgeon. have not acted on

this case. Mr. Rogers cannot be heard to complain.of this °

- type of activity which was strictly “by the book.” Mr.

Rogers goes on in paragraph 4 to state that Plaintiff has

_ disagreed with . the Administrator’ s action in certain cases.

This statement is another example of misinterprétation . a

representatives of the Administrator. Plaintiff has appeared

for pilots: in two cases before the National Transportation ©

Safety Board. In ‘one; the-chief witness, for ‘the Admin-" .

_ istrator, agreed with Plaintiff's position; in the: other, Plaintiff

appeared and offered a medical explanation. for loss of con-

_ sciousness suffered by a pilot who had been’ denied

certification by -the Administrator , for disturbanée | of

consciousness without RRRNEY medical explanation. : he

° . = : : 6° . ° : > . .

neither case, could Plaintiff be charged with disagreeing

with the Administrator. Further, in paragraph 5, Mr. Rogers

; engages in a ¢haracterization of Plaintiffs ethics that is

_" unsupported by fact and that is slanderous in its impli -

cations. Thé import of Mr. Roger's letter. is-the charge

that Plaintiff has engaged in a wonflict .of interest situation

and has actively sought to undercut the authority of the

Adniinistrator. Titis charge is supported. not by fact. but

_ by suggestion. and must fall before an impartial feview of

” Plaintiff's activities as an AME. The Administrator hiniself

+ responded to-an inquiry from the Honorable Edward J.

Gurney. United States Senator. in a lefter dated June 16.

‘ 1970 (see Attachment L). For the most part. his Jeter. is,

couched in general tergs with all the carmarks of a state- .

ment of pelicy. For instance. the Administrator equates

mn AME‘s with employees of the Administration and states,

that the policy of the. Department of Transportation is to

forbid cniployees and AME’s from taking “positions adverse

to the Department in legal progeedings between tlic Depart-

ment and third parties” (Paragraph 2). Ag AME is in =, 4

a position analogous to that of av ‘employee. he stat ;

because an AMB receives “a, certain amount of sing ag

and information and beoomes privy to FAA’SViews on ;

° _omedical facts critical to its decisions.” The Administrator *

concludes that relationship involves 4 degree of trust Ae:

and confidence.Q( Paragraph 2). ife goes on to say that

- becaute” individual and public interest often collide in the

. area Of airman medical certification. fo man can essentially —-

occupy both sides (paragraph 3) and. according to the

Administrator. this is exactly what Plaintiff has done “as

. ap Organized course of conduct.” (Paragraph 4). This one”

“+ “8 sentence js the only. specific refyrence to Plaintiff"in the.

Administrator's entire letter. Hoyer. it is interesting to

note that the Administrfior would not object to an AME

“occasionally taking an applicant’ s Side in proceedings before

. FAA when he feels conscientiously impelled to do so in the

-: “interest of individual justice.” (Paragraph 4). Plaintiff

- Tc 4 e

submits that an impartial review of the facts of his case

would reveal that he has done no more than what the

Administrator considers acceptable. : °

8. Plaintiff strongly disagrees with the positign taken

“by the Administrator and his authorized representatives in

the handling of the matter and believes that all the facts ef

sidered or that an- unfair interpretatiop has ‘been placed

upon. them. In an effort to present his “side of the story °

. Plaintiff authorized Mr. Powell to request a meeting with

Dr. Siegel or his representative. Although this request was

made on two separate occasions (see Attachments D and

M). no such meeting ever took place. However, Mr..

Powell did attempt to present Plaintiff's position at «

meeting requested by Mr. Jennings Roberts, Associate

General Counsel of the Opérations and Evaluation Branch

of ‘the Federal Aviation Administration and held at Mr.

Roberts’ offices. Present were Mi. Roberts, Mr. John

John Marsh, also of the Office of General Counsel, Mr.

Powell and Mr. Robert Buenzle, Mr. Powell's associate. It

is interesting to note that Mr. Roberts’ stated reason for ~

requesting this meeting was to discuss possible legal action

which Plaintiff might bring against the Federal Aviation

Admfnistration. Its main pyrpose was not to present Plain-

tiffs ppsition. nor was the Federal Aviation Administration

prepared to discuss in detail its reasons for refusing to

renew Plaintiffs designation. Rather, Mr. Roberts indicated

that it was the Federal Aviation Administration's wish to

_ put an end to AME’s participation in any aviation medical

case from a.position favoring a pilot. except under sub-

poena. Mr. Roberts indicated that it was the Admjnistra-

tion's aim to deny a pilot the assistanve of 4 physician

skilled and recurrently trained in aviation medical matters.

- This type of expertise was to be retained by the Federal

Aviation Administration alone so that the Administration

would be able tg win more cases at the hearing level. This

is similar to the position later taken by the Administrator

in his letter to Senator Gurney and discussed. supra. A

+. @e

“more reasonable position ‘was taken by Mr. Marsh who

thought that what was being complained of was the belief ”

that Plaintiff’ was acting as an AME on specific cases. pass-

ing-on them as a representative of the Administrator , and

lates appearing at a National Transportation Safety Board

hearing on behalf of the pilot-as a regular course of con-

duct. Mr. Powell indicated that this was not an accufate

_ description of Plaintiff's involvement in airmen medical

cases and offered to write an explanatory letter. Mr. Marsh

agreed that this was a good idea and indicated that, if there

was in fact a mistake or misunderstanding,’ Plaintiff would

be redesignated. since good AME’s are hard to come by

9. Mr. Powell followed Mr. Marsh's suggestion by letter

dated May . m1, 1970 (see Attachment N). Dr. Siegel replied

by letter dated June 10, 1970, in which he indicated that

Mr. Powell's letter presented no new information that

would lead him to renew Plaintiffs designation as an AME

-(see Attachment O). Except for this letter to Mr. Marsh

Plaintiff has been given no opportunity to present his posi-

- tion concerning the charges levelled against him by the

Administrator and his aythorized representatives, even

though those chasges have direct bearing on his fitness to

perform the duties of am AME and on his professional

ethics. Furthermore, Plaintiff has been given no oppor-

tunity at all to confront directly the indiyiduals wha have

formulated: these charges and to test their coonny by

cross-¢xamination. .

10. The mere fact that the Adsainistrator and his

authorized representatives are granted discretion to renew

or refuse to.renew an AME’s designation [8 314(aJ, Federal

Aviation Act of 1958, as amended; 8183.15, Federal Avia-*

tion Regulations (14 C.F.R. § 183.155]. is not de terminative

‘in this case. No administrative official is granted discretion

to act in an arbitrary or capricious manner and the conclu-’

sions reached by the Administrator, Dr. Siegel and Dr.

Faulkner in: this case are arbitrary. Prior to issuing his

refusal to redesignate the Plaintiff,"Dr. Faulkner failed to. _

advise Plaintiff that his activities were considered ingproper. |

initially failed to apprise Plaintiff of the- nature of the

charges placed against him, and failed to learn Plaintiff's

position on those charges. It is submitted: that these

failures on Dr. Faulkner’s part remdered it impossible for —

him to make a fair and impartial decision on the question

of Plaintiff's redesignation. When reasons for Dr. Faulkner's

action were finally obtained from the Administrator and-

his representatives; they were presented in vague and general

terms and included misinterpretations of the facts of this

case. Although he has been charged with conflict of

interest, to this day ‘Plaintiff dées not know exactly on

which cases he is supposedly in conflict with the Federal

Aviation Administration. Therefore, the rebuttal prepared

- by Mr. Powell at Mr. Marsh’s request must of necessity be

inadequate, for he was, and is, unsure of what had to be‘ °

rebutted. Thus, it was impossible for Dr. Siegel to render

fair and impartial reconsideration of Dr. Faulkner’s action

as he’was exposed to only one side of the argument. Plain-

tiff has not been fully informed as to which of his activities

have been considered.grounds for the refusal to renew ‘his

designation as an AME, nor has he been allowed to

adequately present his views concerning those activities.

Refusal to renew Plaintiff's designation under these circum-

stances must perforce be arbitrary and outside the scope

of the discretion granted by the Act and the Federal Avia-

tion Regulations. ;

11. Bayed on-the faets as sin herein, Plaintiff. registers - *

the follwing complaints: |

(a> That the Administrator and Dr. Siegel, the Federal

Air Surgeon, acting as the designated representative ©

of the ‘Administrator, have established a policy

prohibiting designated Aviation Medical Examiners

from testifying on behalf of airmen at National

nsportation Safety Board hearings: and, that the

A@ministrator and the Federal Air Surgeon have

acte¥ in contravention of Section 601(a)(6) of the

Federal Aviation Act’ of 1958, as amended, and

Section 552 of the Administr tive Procedure Act

[5S U.S.C.A. $552), by establi —_ a policy and

10c

‘failing to follow the prescribed procedures for noti-

fication of the Plaintiff and other Aviation Medical

Examiners of that policy by publication prior to

enforcement.

~ (b)

(e)

That. Dr. Faulkner, Resend Flight Surgeon. under

authority delegated by the Administrator. acted in ~

contravention of Section 314(a) of thé Pederal

Aviation Act of 1958, 4s amended, and Section

183.15 of the Federal -Aviation Regulations [14

C.F.R. 815] by arbitrarily refusing to renew Plain-

tiff’s designation as an Aviation Medical Examiner

without informing Plaintiff of the charges against

_ hin or affording Plaintiff the opportunity to rebut

those’ charges. ,

That Dr. Siegel. Federal Air eee sities auth

ority delegated by the Administrator, acted in con-

travention of Section 314(a) of the Federal Aviation

. Act of (958, as amended, and Section 183.15 of the

-(d)

(ce)

Federal Aviation Regulations [14 C.F.R. $183.15] -

by arbitrarily refusing to renew Plgintiff’s designa-

tion aan Aviation Medical Examiner, on reconsid-

eration of Dr..Faulkner’s action, without affording |

Plaintiff the opportunity to rebut- the charges _

levelled against him. :

That the Administrator, Dr. Siegel. and Dr. Faulkner

have acted in contravention of. Section 314(a) of.

the Federal Aviation Act of 1958. as amended. and

Section 183. IS pf. the Federal Aviation Regulations -

‘(14 C-F.R. $183.15] by refusing to renew Plaintiff's ’

designation as an Aviation Medical Examiner asa..°

‘means of punishing Plaintiff for activities. which

Plaintiff was never advised were considered im-

‘ proper by the Administrator or his designated

representatives. ;

That the interpretation of the role.of the Aviation

Medical Examiner exhibited by Dr. Siegel and Dr.

Faulkner im their cAnduct in this . matter and

expressed by Mr. Jennings Roberts and the .Admin-

istrator in regard to expert testimony of Aviation

Medical Bxaminers in hearings before the National

Transportation Safety Board has*no. basis in the

statutory authority of Section 314(a) of the Act or

in Subpart B of Part 183° of the Federal Aviation

Regulations and constitutes an infringment of

Plaintiff's 7 constitutionally guaranteed right of free

speech by denying renewal of his designation and

thus, punishing him for exercising that right.

12. The arbitrary refusals on the part of Dr. Siegel and ,

Dr. Faulkner to renew Plaintiff’s designation as an Aviation

Medical Examiner has resulted in damage to Plaintiff's

financial position and professional reputation. Because he

can no longer examine airmen as an AME, Plaintiff has

lost a portion of his practice that. amounted to approx-

Vee $600.00 per year. Further, Plaintiff has been

ied the practice of aviation medicine to which he dedi- |

d a great deal of time, effort,.and- interest over. the

‘ past eight and one-half years. The scientific interest in-

aviation medicine which Plaintiff gratified by participation.

in AME and AME-related programs far outweighed the

remuneration he received and constitutes more of a loss to.

Plaintiff personally than does the-loss of incgme. What is.

most important, however. ig that by the terms of the cor-.

respondence attached hereto, the Administrator and his

authorized representatives have clearly stated that they

question Plaintiff's proféssional ethics and conduct. Such

serious charges should never have been’ arbitrarily made

and opportunity must be afforded to rebut them.

'_ WHEREFORE, UPON THE PREMISES CONSIDERED, Plaintiff

respectfully requests that the Administrator exercise the

pewer granted to him by Section 1002(a) of the Fed-

eral Aviation Act of 1958, as amended, by compelling Dr. +.

Siegel to renew Plaintiff's designation as an Aviation Medi-

cal Examiner, or: in the alternative, that the Administrator

, conduct an investigation of the Circumstances surrounding |

* “evidencee

ide Tae _ te

Dr. Siegel’s and Dr. Faulkner’s refusals to renew Plaintiff's

designation as:an Aviation Medical Examiner by means of -

an evidentiary hearing at whic) Plaintiff would have a full

opportunity to learméte trr€é nature of the charges against

him, to cross-examine witnesses presented by the Federal -

Aviation Administration, and to present his position con-

cerning this matter through documentary and testimonial

i ; :

Respectfully submitted,

"Emil P. Taxay, M.D.

By - Robert D. Powell

By William H. Roberge, Jr. -

His Attorneys : |

SMITH, PEPPER, =e

-SHACK & L’HEUREUX

1776 K Street, N.W.

Washington, D.C.

July 8, 1970 er ee es, 2 s

Armseanecor Ci

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- DEPARTIAENT .OF TRANSPORTATION ara Le

FEDERAL AVIATION ADMINISTRATION a ee” «

Ceeertern yan, . lassie"

RETURN RECEIPT REQUITTNY + ATLANTA, GLORGIA 30720

- aes :

25 March 1970 he ake . ‘

Emil P. Taxay; M.D.

The Red-Sunset Building 7

* 6915 Red Road

Coral Gables, Florida 33134" <

“Dear ‘Doctor Taxay:: ;

In kecping. with the agency's policy of annual evaluation of the

Examiner Program, we have reviewed your record of activity as a

designatedrepresentative of this ‘agency. The decision has

been reached that it would not be in the best interest of the

Federal Aviation Administration to re- appoint you as an Aviation

» Medical Examiner. Accordingly, your ‘appointment which —

this month will not be renewed.. —

. After. 30 March-1970, pisese return to this onbien your Aviation

Medical Fxamincr ident ification card, AMF Guide, report forms, and

any other Federal Aviation Administration material you may have.

We will be unable to accept any airman medical SRIRESENS

perforned by you wey that date.

We wish to thank you lox your past performance that has served the

necds of the agency.

Sincere}\’,

a. W.° FAULEXER,-¢M.D.

Pegiona)] Flinht Surgeon

Aviation Medical Pivisicn

| by l: Ti

DEPARTMENT OF TRAN. ORTATION :

“FEDERAL AVIATION ADMINIS [RATION | _Ammurcor 4

i SOUTHIE RN MLGION

| P.0. HOX 200.26

—- , ATLANTA, GLONGJA 30320

> P “

10 APR 1970 .

Robert .D, Powell, Esquire : Z

Smith, Pepper, BShagk & L'Heureax

700 Montgomery -Building ~

1776 K Strect,; Northwest mr. .

Washington, D. G. 20006 = . =

Dear Mr. Powel ug “~ '* s

Dr. Faulkner has referred.to me for reply yqur yetter of .

7 April 1970, concerning Emil P. Pree A. D. -

“ -In your letter of 6 April 1970, to Dr: Siegel, you indicate

your awareness that designation of private persons to act

as representatives of the Administrator, under the law and

regulations, is purely a disc tionary matter. ; .

- a .

Pursuant to authority delegated to°him, Dr. Faulkner has

determined that Dr. Taxay should not be authorized to

act as a representative of the Administrator. It is *

‘believed that you and Dr. Taxay are aware of the reasons

for such’ determination. : . eek

- Are we to assyme that your letters of 6 April 1996, to

Dr. Siegel, and 7 April 1970, to Dr. Faulkner, -fndigate an

intention-to challenge legally or otherwise ‘the determina-

- tion made by Dr. Paasnaes ?

Very truly a

Fae

07) bea 3

/ 3. NW. COKER y — "i

Regiopal Counsel nae ‘ :

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“DEPARTMENT OF TRi..SPORTATION, = a » Arincurtswr W |

FEDERAL AVIATION ADMINISTRATION _ - : "

gle A "SOUTHERN REGION |

‘ P.O. BOX 20636

. : ATLANTA, GEORGIA 30320"

oh arr ) oo

, Robert D. Powell, Esquire | 4 .

* Smith, Pepper, Shack & L'Heureux \

700 Montgomery Building ‘

1776 K Street, Northwest. ee .

cacti D,°C, 20006 J : ce f.* aie."

‘Dear Mr, hewetis j ; : 4.

Reference fis mate to your letter of 13 April 1970, concern-

- ing Dr. Taxay. /

As you are aware, Dr. Taxay, while serving as a designated

representative of -the Administrator and identifying himself

accordingly, has appeared as an expert medical witness in’ -._ .

opposition to the position of the: Administrator in semaines > —_

before the National Transportation Safety Boara.

You have savinet Dr. Faulkner that you are using Dr. Taxay

as a consultant in opposing the Administrator in contested \

medical certification’ cases and there is no ddubt about this. =

a "

Curtzindy there is no question as to Dr, Taxay' s right to-

» ‘serve as gp nebenG, whomever he pleases or to testify for

. whomever he chooses, However, it is not sensible or ena seimche

- to continue his dae teens tin as a pb pemnas: non of thé .

Administrator under the existing circumstances,

The circunstenves. described above are considered “to fully

support ana justify the determination made by Dr. Faulkner

that Dr. Taxay's designation should not be ae

—— truly yours,

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J, N, COKER z ‘a . i c h Fs seer e.. -% “ pe: 3 oa

. a : ad ose8 —* - 2 a

psnans Coungel Pats, Red TT LCR Ge Be

‘

—

‘

24 Apr. 1970

+6c°*>

’ .

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

y °

‘ * eo

Emil P. Taxay, M.D.

The Red-Sunset Building

-6915 Red Road

Coral Gables, Florida. 33134

Dear Dr. Taxay: a a ars

~ This is in. fesponse to your letter of f April 1970 concerning

. your designation as an aviation medical examiner. As ‘you

_know, the designation of aviation medical examiners is dis-

cretionary with the Administrator. As an aviation medical

examiner you have served as a representative of the Admin-

istrator. However, over the past several months you have

also Sangh etgnans of pilots against the Administrator.

You have s¢rved so regularly as a paid consultant to attor-

‘neys opfosing the Administrator in particular cases, that, :

Without any reflection on you, it is preferable from this

agency's standpoint not to continue you at the same time’

in the position of an aviation: medical examiner, in. which

you represent the Administrator and assist in carrying out

~some of the Administrator’ S. authority and sais deseo outer’ de —

We do not shallots your qualifications and we welcome.

you to continue to provide expert medical opinjon in the

_.,interest of fairness and justice. We do not feel it would.

-be.in the best interests of the Federal Aviation Administra-

tion to have:you continue as a designated representative of

the Admipistrator.

Sincerely,

_P.V.. SIEGEL, M.D. - -

_ Federal Air Surgeon, AM-] —

Washington, D.C. 20590

-N

»-,

_y Taxay of Coral Gables; Florida. In your letter you_set forth a sum-

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FEDERAL AVIATION . ZMINISTRATION 7 Arttenpsar oh.

i mi WASIIINGTON, D.C. 20590 *

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16 JUN 1970 - =i ae ; OFFICE OF

. : : pa a : THE ADMINISTHATOR

Honorable Edward J. ‘Gurney Pi al rota ree ae

United States ‘Senate x me ‘

Committee on Government Operations , j . “4

Washington,, D.C. 20510 , é BACs : ’

Dear Sonator Gurney: 3 ions os '

This is in reply to your jetter of 27 May 1970 concerning Dr. Emil P.

mary of Dr. Taxay's involvement in 20’pilot certification tases-——__

handled by a law firm. You ‘consider that Dr. Taxay’ should be com- ,

mended for his participation in these cases and not "arbitrarily

fired;"'and you invite our comments. . — a ‘<< ite

- .

Like other ‘government agencies, the Department’ of Transportation

does ‘not permit its employees to take positions adverse to the

Department in legal proceedings between the Department and third .~

parties. (Employees may always: give, factual testimony.) An aviation

“medical examiner -is- not an tmployee,. byt sirice he holds a delegation. .

to perform a governmental function on behalf of the Federal Aviation

Administration, he is, in this respect, in a position analogous to an~

employee's. He received a certain amount of training and information

‘ahd becomes privy to FAA's views on medical facts critical to its

decisions. . The relationship involves a degree of trust and confidence. - |

‘It may well be’ that sometimes the interest of justice is served by.an

aviation medical examiner testifying as dn expert against the :-FAA ee .

‘position, but an applicant's interest in justice in his individual . —. .

case must be balanced against the general interest fn justice of the -

body, politic which FAA must’ represent. It seems to us that ‘ip the:

‘area'of medical certification of airmen ’as in‘ other areas where ,

individual and public interest.often collide, no man can essentially

cecupy "both sides. Furthermore, if aviation medical examiners were

generally available as expert witnesses against FAA, litigants would

prefer. them to experts not connected ‘with the government because ‘of, see"

.their prestige, which*would neither be in the public interest rior in

that of other qualified members: of the legal profession. :

\ Becta . D . ie os

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Pa o ; : es \

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. + Sst oe ate L° May 21, 1970

gp Soh EO Marsh.Esq° a a ee

‘ Chick, Spepral Rroyects and OF a een de

*. 3. *- Appellate, Branch GC-31 <a. ee en a

"—" _ , Office “of the Gengal Counsel ae sy, ,

+? ° Federal Aviation Adruinistration ‘ '

+1 :*+Washington, DC.” : eae St :

j > -t— . : 7 :

te - * Dear Joha-., ,

- . + you will recall, at qur meeting in Mr, Roberts’ office -

2 -“on May & 1970s you offered me the opportuntty of settmg -

. > “for in, writing Dr. Faxay’s pesition in the matferof the,

— =" 5 decision ‘of Dr. Faulkfer not to redestgnate Dr. Taxay as an ~

~ = °. Aviation Medical Examiner. There may be a-materiat mis-

.. understanding ori this suifject sod thank you for this oppor- *

_ Ses gunity to square the record. =. . a

_ + 2 “asf expressed during our meeting. Dr. Taxay sa gom =. 7 *

* * _ petent, Ronotable, professional and highly ethieal physician.

‘He has been an.Aviatipa Medical Examiner for gine years.

* «2 gnd his competence and professeonal juligment fate never

> 5. * beentGuestioned During this period of time If has devel-

= _Gped medical files that have resulted 16 either Jhé certifica

__.. tion of ultimate denial of many dirline pilots.

> «2. Dr _Taxay- became known to this office in a dimited way fi

1 On December 19, 1968! He was the phyvcian of an airline.

** « ' pilot I-had represented in the past, William S. Ewing. I had

‘ ~~) abandoned: Ma. .Ewing on acts | had avatiable jn carly

1968. My. Ewing and Dr. wanted to-kaow if there

i S, was a chance’to obta® a certificgte-dor Mr. Ewing fcestain

» * additional testingwas accomplished. 1 évitwated the proposal_-

: | " (One fpr arteriography and cardiac metabolism testing) and .

informed Mr.-Ewing tbat if he were willing tq undergothe -_ . | —

" ¢ tests and risks involved. } would be. happy to lodk at the — .

: /£ . . : ’ - -

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19¢ \ . ; es

case again: upon their completion. On April 15, 1969, after

- completion of testing, Dr. Taxay acting- 4s an AME per- S,

formed an examination of Mr. Ewing fer a Grst class certi- ;

ficate. but declined Jo issue the certificate because of an |

abformal electrocardiogram indicating Left Bundle Branch

Block. ‘The informatiqn relative to the testing Mr. Ewing ~

-had undergone and his entire case history was developed

into a protocol, and furnished to Dr. Faulkner along with

the first Glass examination. Dr. Taxay did not consult

‘me as to whether er not he should, perform a fifst class

physical examination on » pilot after develping informa-

tidn pertinent to him. He\did not think it improper not to -

issue the certificate. and t a

that one beissued. He was advised that this woulg

be considered an improprigty..\or ee nee Se

impropriety.

Dr. Tansy Seattlied ut the healing on tite anutti ce Ocie- “*

ber 8, 1969, and consulted with me to its conclusiag. As -

. you know, we gre all awaiting Examiner Fowler's decision.

During the legnth of his participation, Dr. Taxay was not °

advised that he was acting improperly. The position he

took .was that of an.cxpert, but his testimony did not vaty

substantjally*in its-conclusion from that of Dr. Westura, ¢.¢..

that Mr. Ewing should be permitted a certificate that would .

enable him to functian in some flight training capacity.

Dr. Taxay’s situation ris a vis Mr. Ewing is therefore

* summarized as &ilows: Mr.-Ewing was his patient. Dr.

Taxay reviewed his files and ‘saw that further testing might

help his patient resume some aspect of his livelihood: He

iad this information developed hoping’that he-would find

_agreemenf at the Federal Air Surgeon's office. The AME

examination was only a vehicle to ‘the case recon-”

. sidered in light of the newinformation. It is significant

that -as ay Dr. Taxay did not issue a certificate but ;

placed the ma the hands of the Federal Air Surgeor. a4

* Leven though he did some form of a certificate should .

* be. issutd. Teeth Gea so Set en te pen ee Oe

* point.

=Vt 3 =

| submit further that Dr. Taxay’s appearance and consul-- °

tation on the Ewing case is equally. blameless. The Begin-

nings of the case necessitatéd an AME, and becaysé of his

_professionalism Dr. Taxay played that role in accofdance

with the guide furnished him. After the Federal Afr Sur-.

geon denied Mr. Ewing, Dr. Taxay’s participation was an

examifiing physician and consultant, not AME. Had he not

acted as AME in the matter, there would not even -be the

slightest reason fo suspect his ethics, though in dcting as

cannot be said that a doctor, who is an AME, and so acts

on many cases, may not be permitted to consult or act as

an expert on.a‘case in which he ‘plays no part as physician —

for the Government. -*We do net intend here-to admit,

therefore, that a conflict of interest exists under these cir-

cumstances, but because the problem has arisen, and because

of the warning that Dr. Taxay has received by way of the: °°

development of the factors leading. fo the refusal to redesig-,

nate, he ts now on notice that this practice js unacceptable

to FAA. As such, Dr. Taxay is periectly willing to comply.

with.FAA’s wishes in this-aréa. if it will heop to resolve thé

difficulty. ou ’

Well after tite beginning of Dr. Taxay’s jnvelvement in

' Mr. Ewing’s situation, I had sent him somé éases to review.

| had done so because | was in need of medical expertise.

. and because of the very impressive jab Dr. Taxay was doing

in: factually developing the Ewing case. He did not act as

AME on them, he servéd merely as an consultant. He has

acted as AME on:two and has not served as a consultant.

An example.of such a case is the Joseph Burrell -case. cur- |

_ ently before NTSB. The reason for Mr. Burrell’s referral

to Dr. Taxay for an AME work-up was that Mr. Burrell had

moved ‘into the Miami area after he became my client. He

asked if I knew an AME in the area, and knowing that Dr.

7 Taxay was competent and qualified, | recommended Dr.

' Taxay. Dr. Taxay’s work-up of Mr. Burrell should be avail-.

able to you. He had Mr. Burrell obtain opthomologist tests.

and head x-rays before considering him forsa certificate. Dr.

_ Taxay ultimately denied Mr. Burrell. The other example of

- e *

“2ic

: a case in which Dt. Taxay acted as AME is K_D. Wright, to,

' . be considered bélow. ae ey ce

. Dr. Taxay has participated in five (5) cases as a consultant

in which the airman was certified by either Dr. Siegel or

. and advised me to.drop the cases as the pilots should not be

certified. and. should not fly: He has téstified in two (2)

cases, Ewing and Shrage. ‘He was d consultant only-in Shrage.

The Ewing matter was developed largely before he _beggn to

advise me on certain other cases. Dr. Taxay has acted as a

«consultant on a case currently before the NTSB—that*of |“

* ‘Piche. . Hefwas the AME on the case, and: will probably

testify. ef eee ig De

’ Dr. Taxay has been accused by Dr. Faulkner of acting as

consultant to me on a.case which he knew that the Admin-- ~~ .

istrator would not be in favor of the pilot returning to tuty.

The case is K.D. Wright. Dr. Taxay has not acted as a con-

Bs. Cosas on this case. It is a psychiatric case. Dr. Taxay is

an internist. ‘What he did was give Captain Wright a first :

class physical, and look over this past record to ascertain .

. whether there was cause for denial; He found ‘such cause in

. the fact that Captain. Wright had previously been denied.

and.accordingly denied him. In order to ‘develop informa- — -°

tion concerning the reasons for the past denial,-Dr. Taxay,

a licensed pilot, flew with Captain Wright, having on board f

_ 4 psychiatrist, and a nurse to take blood pressure readings.

This was the extent of his parti¢ipation And it was accom-

' plished to aid thie Federal Ait Surgeon: in evaluating the —

alleged “fear of Tlying”-in Captain Wright. No criticism was

-levelled at ‘Dr. Tyxay for this action at the time he acted.

Dr. Taxay has done much the sante thing,by way of extra

stress testing at the request of Oklahoma City on: numerous

. cardiovascular cases after turning down the pilot. It is much

- the samé as asking for an audiogram in the’ case of a pilot .

having hearing problems. If Dr. Taxay testifies at the Wright

hearing, it will beeunder subpoena. Dr. Faulkner's allega-

tion that Dr. Taxay has acted-gontra to a known decision

. _ * . .

- . * *

= .

‘

’

“.

of the Administrator is without foundation. - First. as the, .

matter is still in the hands of the Region, there has currently

been no decision of the Administrator. Secondly, Dr. Fexay,

‘has not acted contra to the Administrator. He ‘turned C ap-

tain Wright down, even after. having performed a pertinent: ,

flight test. MoreoYér: Dr. Norwood, at FAA ‘indicated to

- me in a meeting that’ the Wright case would be reconsidered

by FAA if there was a change in Captain Wright's life-style,

or status. As fos conSultdition on.the case, my constrltants

‘are Dr. Philip B. Phillips, Dr. Lucio.Gatto, and Dr. Irving™

A. Fosberg; Ph.d. ‘None of these gentlemen know or have

* — to Dr, Taxay.

. The ‘outline of Dr. Taxby's icone is rfot extensive.

It 1S impressive to note that in most of the cases on which

he has acted as a consultant, the cases have- been dropped.

In‘ five (5), the pilots have been certified by, either Dr.

“ Siegel or the Paneti Theretore, in the vast majority of ‘the

cases he has acted upon, the best interest of the public has

~ been realized. He has testified at two ‘bearings, and did the .

AME- work-up on only ohe of these, although not certifying

‘the pilot though he believéd ‘there should be certification.

He was not advised at any time that he-was ina conflict

situation, nor did he act in such & manner that would render

him guilty of such a.charge. It is unfostunate that Dr. ‘Taxay

did the workup on Ewing, but there was no bad faith

involved. He has never aeted in“a way that could, be called .

unethical. - His disagreements with the Admihistrator have

always been within the framework of the Regulations. More

cannot be asked. of a scientist; ‘physician. Se ¢

We request: 6n behalf of Dr. Taxay, that these facts

made-known to Dr.. Siegei. Dr. Taxay should be: allowed

to remain /as.an AME, as he is a good one. Yoti need only

; check with Oklahoma City to verify that fact. If he is

-allowed to remain, you have my word, and Dr. Taxay’s,

that he will net appear as an expert in a case of a pilot on

whom.he has performed the examination of a designated

’ Aviation Medical Examiner if sweh examination is prefatory_

— = Eee 8 - a a= — ss “~*~ + «>. ,

f=. ore ?

-to a denial of-a certificate by the Federal ais Surgeon,

unless subpoenaed. It is believed that this commitment on

* Dr. Taxay’s“part, while nat necessary from, the point’ of -

view of Dr. Taxay’s ethics, should serve to allay any doubts

that the Fedéral Air Surgeon. may have concerning’ Dr.

Taxay’s activities. ae

Very truly yon,

- Robert D. Powell’

‘ec: The Honorable Herman Talmadge

The Honorable Richard L..Ottinger

‘ The Honorable Spessard L. Holland

The Honorable Edward J. Gurney

tw The Honorable Fletcher Thompson

‘The Honorable. Dante Fascell

RDP; pat it

bale ks ‘ 2 : e.3° i

DEPARTMENT or TRA. ‘ORTATION ; : :

FEDERAL AWIATION ADIZINISTRATION ; Arr etonr °.

eH - WASHINGTON, D.C. 20590

= “Ay 5: s ve ae ,

>. 10 Jun 1970 | JUN. 197) a

Cwebiv cll) ,

Mr, Robert D. Powell.

_ Smith, Pepper, Shack and L' dourent:

" Attorney at Law

- 700-Montgomery Building

1776 K Street, N.W.

Washington, D. C. 20006 da! igh bie coat

Dear Mr, Powell: a ; sa

¢ “oc

Your, letter: of 21 May 1970 addressed to Mr. ‘John A, Marsh, het ; ee

domes Projects ‘and Appettate Branch, 6C-32, has been referred: for ;

“reply. I have ee your letter and rig no new ares scone =

which would lead me to designate Dr. Emil P. .Taxay as an Aviation

Medical Examiner for the Federal Setaiiae Administration at this

time. ‘ a an ae

Sincerely,

ele

e. Fy; Vege M,D. ; ‘

Federal Air Senger, AM- 1 > ns mk:

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.