# Petition for Writ of Certiorari — In re Research Air, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1274%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 543 U.S. 978 ## Text Supreme Coust, U.S. [ FILED No. 4 311 AUG2 3 20M In THE OFFICE OF THE CLERK Supreme Court of the United States IN Re RESEARCH Air, INC, CHARLES R. ARMENT, AND MIcHAEL H. Ditton, Petitioners, v. CaTtuy A. CATTERSON, CLERK OF THE CourT, UNrTED STATES COURT OF APPEALS FOR THE NINTH CircutT; HONORABLE GALE A. Norton, SEC- RETARY OF THE INTERIOR, DEPARTMENT OF INTERIOR; DEPARTMENT OF INTERIOR; STEVE SMITH, West AREA Director, OFFICE OF AIRCRAFT SERVICES; ROBERT GALLOWAY, AVIATION SAFETY MANAGER, OFFICE OF AIRCRAFT SERVICES; UNITED STATES OF AMERICA; AND HONORABLE RICHARD F. CeBULL, Unrrep States District Court JUDGE, Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PETITION FOR CERTIORARI OR WRITS OF MANDAMUS AND PROHIBITION MIcHAEL H. Ditton Petitioner, and Counsel of Record for Petitioners Attorney at Law 2210 Bridger Drive Bozeman, Montana 59715 (406) 587-7386 i QUESTIONS PRESENTED Whether Ninth Circuit Rule 27-10 that supersedes Federal Rules of Appellate Procedure (“FRAP”) Rule 40(a)(1) violates 28 U.S.C. 46(c), 2071 and 2072 and 28 U.S.C. App. FRAP 47 by imposing a 14-day filing time limit on petitions for rehearing and rehearing en banc when an officer of the United States, a United States agency, and the United States are parties to origi- nal proceedings. Whether the Ninth Circuit’s five Bauman guidelines conflict with 28 U.S.C. § 1651 and this Court’s precedent when applied to deny mandamus or prohibition writs to enjoin federal agency officers’ ultra vires and unconstitutional actions, protect the appellate court’s jurisdiction, command a lower court to decide a pending case pursuant to FRCP Rule 65 and 28 U.S.C. § 1657(a), and review unconstitutionality of district court local admission rules? Whether Petitioners are entitled to relief pursuant to 28 U.S.C. § 1651(a) and Supreme Court Rule 20 to compel Respondent Clerk to file and distribute their Petition for Rehearing and Suggestion for Rehearing En Banc; compel Respondent District Court to decide the preliminary injunction motion; enjoin federal agency officers’ ultra vires and unconstitutional actions; and, review unconstitutionality of district court local admission rules? il PARTIES TO THE PROCEEDINGS The parties to the proceeding are: RESEARCH AIR, INC., a corporation | CHARLES R. ARMENT, an individual ; MICHAEL H. DITTON, an individual as Petitioners, CATHY A. CATTERSON, Clerk of the Court, United States Court of Appeals for the Ninth Circuit, in her official capacity i HONORABLE GALE A. NORTON, Secretary of the Interior, in her official capacity DEPARTMENT OF INTERIOR a federal executive department STEVE SMITH West Area Director, Office of Aircraft Ser- vices, in his official capacity ROBERT GALLOWAY, Aviation Safety Manager, Office of Aircraft Services, in his official capacity UNITED STATES OF AMERICA, HONORABLE RICHARD F. CEBULL, United States District Court Judge, in his official capacity as Respondents. Pursuant to R.Sup.Ct. R. 29.1, Petitioners state there are no par- ent companies or subsidiaries of Petitioners. ill TABLE OF CONTENTS QUESTIONS PRESENTED .....ccccccccccccccccccce i pe ern itl PT RP RUREEUED 60 ccc cccccccncectsescosces vi i oo 6 sas keeb ee set scévoceenseneaten l i sai ck sys sh deabie ss aewa 6a sds cubeee ss l CONSTITUTIONAL PROVISIONS AND STATUTES .... l OPEREMENOE GOT BUMP GGUIED occ scccsaccsccccscccccse 2 REASONS FOR GRANTING THE WRIT .............. 7 I. THE COURT OF APPEAL’S 14-DAY RULE: ........ 7 A. VIOLATES FEDERAL RULES OF APPELLATE PROCEDURE RULES 40(A)(1) & 47; 28 U.S.C. §§ 47(C), 2071 & 2702 ............... 7 B. CREATES TRAPS FOR THE UNWARY CAUSING PERNICIOUS EFFECTS ........... 15 C. AMOUNTS HERE TO FRAUD ON THE COURT ..__17 Il. THE NINTH CIRCUIT’S BAUMAN GUIDELINES CONFLICT WITH 28 U.S.C. § 1651 WHEN RE EP eee eer Te eee eee 19 A. TO NOT COMPEL PRELIMINARY TEE oc cctniewessscaksceen 24 B. TO NOT RESTRAIN FEDERAL OFFICERS : ACTING ULTRA VIRES AND UINCUINSEEEULIONALLY 20... cccccceccccces 26 C. TO NOT REVIEW LOCAL ADMISSION RULES . 28 ET cccdans has bbc cbtdbachacdsescnae’ eee 30 . Ninth Circuit Docket for Cir. No. 04-70454 ......... llla 1V APPENDICES Ninth Circuit’s May 17, 2004 Order Denying Motion .__ila Petitioners’ April 28, 2004 Letter Complaining eae) 1s oe ae a re eee ig edge 2a Petitioners’ April 13, 2004 Motion to Vacate GE ei cacassawnsndcdiedsneseseeindedns l4a Ninth Circuit April 5, 2004 Order Denying Petition... 28a Petitioners’ March 17, 2004 Petition for Rehearing PTE Ere rel Tee ey rere oT err ry 29a Ninth Circuit’s February 25, 2004 Order ID bv a canes sank snaees obeueecneey 47a — . Ninth Circuit’s February 17, 2004 Order Demanding PEE OE vb onc ci ese ne s déebeandéeusee 48a Ninth Circuit’s February 6, 2004 Docketing Peston Ma Cae INO. GU FP IS occ cacenenvcscsisens 49a . Ninth Circuit’s February 2, 2004 Docketing Notice ee Se OTE nb cd ck avn cnsadeenevetecunnss 50a Petitioners’ January 30, 2004 Petition for Writs of Mandamus and/or Prohibition ................. S5la District Court’s Order Dated January 7, 2004 Scheduling Hearing on Local Counsel Motion to Withdraw for January 30, 2004 .................. 74a District Court Order dated October 15, 2003 Denying Petitioners’ Attorney Ditton Admission .... 75a . District Court Order dated July 25, 2003 Ordering Administrative Record Filed ..................... 78a Petitioners’ July 2, 2003 Motion for Preliminary SE hkau kes ddgedaed es caeeue ceeeareenes 79a Petitioners’ July 2, 2003 Complaint CPO kncnencdcuamhcnina sinnbiee ss 82a ~ AA. Vv Ninth Circuit Docket for Cir. No. 04-70372 ......... District Court Docket for Dist. No. 03-54-BU-RFC ... Federal Aviation Act Excerpts, 49 U.S.C. oF er Pr rer ree: Independent Transportation Board Act Excerpts, OP U.BL., GS ERGO IS Ghee nko csdceans baweinn vues Administrative Procedure Act Excerpts, > UDA. GG SSGb- 10) SOG no oc ov cedaenbekdcnes Ninth Circuit Notice of Proposed Amendments to Circutt Rules Aus. €, 2003 ... 0... cece cccccs U.S. District Court for the District of Montana, SMOG 6 56.6655 be eee Ninth Circuit Advisory Notes to Cir.R. 27-1-4 ....... Federal Advisory Committee Notes FRAP 40 ....... ae UB. 8 OGGE ics dni csvincehusoe eee vi TABLE OF AUTHORITIES CASES Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990)... ..... 27 Adamo Wrecking Co. v. United States, 434 OS. STS CIGTED on ccacsccccasuagssveutestnaan 27 American Bioscience, Inc. v. Thompson, 269 F.3d 0677 GA. Cie SGD 20dcnec secccapeunpesucas 23 American Rivers v. FERC, 170 F.3d 846 COR Cle, ROGUE 6 on vnkcccesuciuetssereseyensees 24 American School of Magnetic Healing v. McAnnulty, 167 UD. SECTS 6c veccuscututsssenctsaesess 27 Arapahoe County Public Airport Authority v. FAA, 242 F.3d 1213 (10th Cir. 2001) ................. 26 Bankers Life & Casualty Co. v. Holland, 346 US. SIO CSSD cccccdutncseusadseusyssuaeen 24 Barry v. Barchi, 443 U.S. 55 (1979) . 2... 6.66. c eee ee 26 Bauman vy. United States Dist. Ct., 557 F.2d 650 (9th Cir. 1977) ......... 6, 18-21, 23, 25 Bell v. Burson, 402 U.S. 535 (1971) ..... 2.2... .0 06 26 Bianchi v. Perry, 154 F.3d 1023 (9th Cir. 1998) ........ 16 Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995) ........ 16 Bowen v. Michigan Academy of Family Physicians, 476 UD. GGT CISGED oc cevccunctsanchecssaneen 27 Brown v. Smith (In re Poole), 222 F.3d 618 (SG Cie, SUMED 0 0cc0csecscenbasesgeseeeseeun 28 CAB v. Delta Air Lines, Inc., 367 U.S. 316 (1961) ..... 28 Calderon v. Thompson, 523 U.S. 538 (1998) .......... ll Casad v. HHS, 301 F.3d 1247 (10th Cir. 2002) ........ 26 Cheney v. U.S. District Court, 542 U.S. __ (2004) ..... 21 Chambers v. NASCO, Inc., 501 U.S. 32 (1991) ........ 19 Coalition of Airline Pilots v. FAA, 370 F.3d 1184 tele 2 Pree rrr rT 22 Colorado River Water Conserv. Dist. v. United States, GUUS. GED CIGD nob hn08dscnsedieiaseieeee 25 Commercial Drapery Contractors, Inc. v. United States, 133 F.3d 1 (D.C. Cir. 1998) ........ 27 Cromoglass Corporation v. Ferm, 500 F.2d 501 (Sub Che, ISPD occ cciccccccscucesencsaseeesun 25 Vii Coteau Properties Co. v. Interior, 53 F.3d 1466 Se OE SbaSeaubscaeeaé weacasaeddeuces 25 Custer County Action Association v. Garvey, 256 F.3d 1024 (10th Cir. 2001) ...........0..... 27 Dart v. United States, 848 F.2d 217 (D.C. Cir. 1988) ... 28 DOT v. Public Citizen, 541 U.S. __ (2004) ........... 26 Dynamic Aviation v. Interior, 898 F. Supp. 11 SR aa ccanduebel ites ssh dcaueca nin 22 Ellis v. U.S. District Court, 356 F.3d 1198 Ce Ce Bee CO BME) gcc ccccccccccccccccscs ll Ex Parte Bradstreet, 32 U.S. (7 Pet.) 634 (1833)... oses OO Fairview v. Transportation, 201 F. Supp.2d 64 Ge EE sn. cub susvalasawbnubbaaeennaces 26 Foster v. Skinner, 70 F.3d 1084 (9th Cir. 1995) ........ 23 GATX/Airlog Co. v. United States, 234 F.3d 1089 PE BE 5b aba csdenmchdeckesesckseeeus 22 Gerritsen v. Consulado General de Mexico, SSP Fe FOO GR Cre IGF) bo cccccccccccccccces Gibson v. NTSB, 118 F.3d 1312 (9th Cir. 1997) Se 6 ob Ghana vanacduceakasacccceneads 23 Goetz v. Harrison, 154 Mont. ee 29 Graham v. Teledyne-Continental Motors, 805 F.2d 1386 (9th Cir. 1986) .................. 22 Grand Canyon Air Tour Coalition v. FAA, EPO ewe SS Cas GED BOOED bc ccccccccoccscece 27 Greene v. McElroy, 360 U.S. 474 (1959) ............. 26 Gwaduri v. INS, 362 F.3d 1144 (9th Cir. 2004) ........ 14 Harmon v. Brucker, 355 U.S. 579 (1958) (per curiam) .. 27 Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001) ...... 16 Hawaii Helicopter Operators Ass'n v. FAA, Fe Ce BES COUN GEE FOOD ccctcccecuccicescess 23 Hazel-Atlas Co. v. Hartford Co., 322 U.S. 238 SN ..50cnGhnn bAdnnghedced ee bones eéece on 18, 19 Hibbs v. Winn, 542 U.S. __ (2004) .... 2... eee. | Huffman v. Montana Supreme Court, FER E> MN, BRE OMPOEE oon kncccccccectecescoe 29 Hunt v. Commodity Futures irading Comm., See WL PEPE PUR GED ENCED occdccdccccccnncaa 23 Vili In re American Rivers and Idaho Rivers United v. FERC, _ F3d__ (D.C. Cir. Jun. 22, 2004) ..... In Re Perry, 859 F.2d 1043 (ist Cir. 1988) ........... In Re Vargas, 723 F.2d 1461 (10th Cir. 1983), cert. denied, 469 U.S. 819 (1984) ............... Insurance Co. v. Comstock, 83 U.S. 258 (1872) ....... Jifry v. FAA , 370 F.3d 1174 (D.C.Cir. 2004) .......... Joint Anti-Fascist Refugee Committee v. McGrath, ee ee Ec cnk os wincarindenwae cease te Kerr v. United States Dist. Court, 426 U.S. 394 oo Re re errr errs yr ere Kovilic Construction Co. v. Missbrenner, 106 F.3d 768 (7th Cir. 1997) ........ Serer erry LaBuy v. Howes Leather Co., 352 U.S. 249 (1956) ..... Larson v. Domestic and Foreign Commerce Corp., pg Sr ee ere Pere Las Vegas Hacienda, Inc. v. CAB, 298 F.2d 430 (9th Cir.), cert denied, 369 U.S. 885 (1962) ....... Leedom v. Kyne, 358 U.S. 184 (1958) ............... Leslie Miller, Inc., v. Arkansas, 352 U.S. 187 (1956) .... Life & Fire Insurance Co. v. Wilson, a Pee Perr rrerrr rr Louisiana Public Service Commission v. FCC, Sa PR chase cawed ace ecas cee eaece L.P. Steuart & Brothers, Inc. v. Bowles, 322 U.S. 398 PE cacib sakes e indeed eh Saks oes aaeee ane rees Mallard v. United States Dist. Court, Se EUG Su deetieedeusedneweeds Maloney v. Plunkett, 854 F.2d 152 (7th Cir. 1988)...... Mancuso v. Herbert, 166 F.3d 97 (2nd Cir. 1999) ...... Marbury v. Madison, 5 U.S. 137 (1803) ............. Mariscal-Sandoval v. Ashcroft, 370 F.3d 851 oe GR per er ree Matter of Bar Examination, 187 Mont. 159, 187, SE 5 tne eaeaonsedssdeatandeas Matter of Sandahi, 980 F.2d 1118 (7th Cir. 1992) ...... Mayo v. Lakeland Highlands Canning Co., Pe SD on batccne bee ane bancansves iX McClatchy Newspapers, Inc. United States, 288 F.3d 369 (9th Cir. 2002) ................... 1] Mendenhall v. NTSB, 92 F.3d 871 (9th Cir. 1996), as mod. 213 F.3d 464 (9th Cir. 2000) ............ 25 Miller v. French, 539 U.S. 327 (2000) ............... 24 Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) Sen een i1-13 Missouri v. Jenkins, 495 U.S. 33 IE > e's aks 8, 10, 16 Morales v. Trans World Airlines, Inc., ae 24 National Org. for Reform of Marijuana Laws v. Mullen, 828 F.2d 536 (9th Cir. 1987) ............ 12 Norton v. Southern Utah Wilderness Alliance, 42 US. __ (Jum. 14, 2004)... cuca neee, 23 Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) ............... 14 Oceanair of Florida v. DOT, 876 F.2d 1560 ee Pre ae eee 28 Oestereich v. Selective Serv. Sys. Local Bd. No. 11, TPS UB. SIS EIDGG) oo vn cccenccsccnccenn, 27 Philadelphia Company v. Stimson, 223 U.S. 605 (1912). 26 Rees v. United States District Court, 572 F.2d 700 (9th Cir. 1978) .......... Wad iG Me eek Slee ae 22 Reeve Aleutian Airways, Inc. v. United States, 889 F.2d 1139 (D.C. Cir. 1989) ................. 25 Rhode Island Dept. of Env. Mgt. v. United States, SOO P3631 (het Cle, 2002) 2... 5k cece cee 23 Rittenhouse v. Delta Improvement, Inc. (In Re Desilets), 291 F.3d 925 (6th Cir. . ss 29 Roche v. Evaporated Milk Association, 319 U.S. I kn as Chet dca w bhatt ae kk ica 24 Schacht v. United States, 398 U.S. 58 a re 9 Sperry v. Florida ex rel. Florida Bar, ee Bt are 29 Stark v. Wickard, 321 U.S. 288 (1944) ............. 26, 27 Stidham v. Peace Officer Standards & Ti raining, 265 F.3d 1144 (10th Cir. 2001) ................. 25 Sloan v. Department of Housing & Urban Development, 231 F.3d 10 (D.C. Cir. rer 25 X Tempe v. Federal Aviation Administration, 239 F. Sgp.26 S35 (D.C. BGS) ance acccacessas 26 Textile Mills Securities Corporation v. Commissioner, ee ee | PPP rererrerr sere rr Terre 13 Theard v. United States, 354 U.S. 278, 281 (1957) ..... 28 Thermtron Products, Inc. v. Hermansdorfer, gS ee Reeererrer rer err errr rr 25 Thomas v. United States, 328 F.3d 305 (7th Cir. 2003) .. 14 SUR © Eley Sat Us BIO ENP) bik eee bandaredanas 28 U.S. Air Tour Association v. FAA, 298 F.3d 997 (D.C. Cir. 2002), cert. den., 123 S.Ct. 1783 (2003).. 27 United States v. Beggerly, 524 U.S. 38 (1998) ......... 19 United States v. National City Lines, eg re rere rr 9 United States v. Oakland Cannabis Buyers’ Coop., Re rey er mie reas > United States v. Red Frame Parasail, 160 F. Supp.2d 1048 (D.Ariz. 2001) ............. 8 United States v. Ron Pair Enter., Inc., 489 U.S. 235 fi EPC re yer C rer rye Pre rorE rrr rT rree 20 United States v. Schooner Peggy, Ok te me eee rrr 24 United States v. Seatrain Lines, 329 U.S. 424 (1947) ... 28 United States v. Varig Airlines, 467 U.S. 797 (1984) .. 26, 27 Willowbrook v. Olech, 528 U.S. 562 (2000) ........... 30 Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) ....... 25 Washington Public Utilities Group v. United States District Court, 843 F.2d 319 (9th Cir. 1987) ...... 20 Western Pacific Railroad Corp. v. Western Pacific Railroad Co., 345 U.S. 247 (1953) .......... 9, 10, 13 William H. Banks Warehouses, Inc. v. Watt, 205 F.2d 44 (9th Cir.) (per curiam) cert. den., pS Re Ream gg penning aS 11 Williams v. Simons, 355 U.S. 49 (1957) (per curiam) ... 24 Youghiogheny and Ohio Coal Co. v. Milliken, 200 F.3d 942 (6th Cir. 1999), cert. den., re See EE +0 Sou Grn leaseeseaveaneees 14 Zephyr Aviation, L.L.C. v. Dailey, 247 F.3d 565 eR A I A ae rere EEA Aras 22 xi CONSTITUTIONAL PROVISIONS Amendment V, United States Constitution ............... STATUTES PS 5d oo heh hee ke wees adden es 1, 28 PE tiered vas kn a dath naka leak ks 1, 23,22 ES bn wikd a 30 4a xmas Wa wee 1,7, 10 EEE. i sg 0a twas ee Gee woe aewakaaes 17 REE iad Sak os Gatorade achanaaes 44 W445 Exe 17 PE I) ed oaks a oe ean de eGeee ki cance sen 14 CR | BR Er re peer e err rr rr ra 14,17 GEE TE a cana eaek cc Loe ee eee ee iow ees 14,17 PRE OE i aes yeas ones we we ak Keane ieee 17 Ea ra Gere ade nab awe eae tan weke sie 14 a ona kes ous cuexdsekanee sh 1, 19, 23 es EE bah da kab Ga beak wanen eee 17, 20, 24, 26 a S| Ep iid Stra eine eR aa eg ae 7,9 Oe EI eG Ata Sade yvad bn ddee eee aeus 55 7, 9, 10 ee EE kk cokes c ake. Sti dein Noack ee haere eiohs 17 20 U4... App. FRAP Rate 2)... 6.2. cia aaess 11, 12, 15 28 U.S.C. App. FRAP Rule 27 . ow... wens 11,12 28 U.S.C. App. FRAP Rule 35 ............ 6-9, 11, 15, 16 28 U.S.C. App. FRAP Rule 40 ............ 6-9, 11, 14-16 ae USA... Age. FRAP RMS? 2... 5 cc ccnescacces 7, 11 28 U.S.C. App. FRCP Rule 52 ..... Le Ahan kak 25 Be Pe PD. PO EGS oso oc eins cncnsaenss 24 49 U.S.C. §§ 40101 & 46110 ................. 1, 22, 26 Oe eas Oe PRUE EO oc bak Shika deneunedeakeos 1, 22 RULES a rrr nr er re re ] ee 1, 20 POE IUD EAD oibccadenvabcvandanseenan 1] DOR PTE cn cnc csnancccawncsesianes 7 eS | ere 7, 10-12, 16 ip ee eh rrr 2, 4, 5, 28 Rules of Court of Federal Claims, Rule 81(b) ......... 29 Rules of the Armed Services Board of Contract Appeals (1 July 1997), Rule 26 ........-++++005: 29 REGULATIONS tg 2) Sen eer rn ree ee eer 29 PAGE. SORTING non cc cies ccc en csd se ccbssvans 3 MISCELLANEOUS 12 James Wm. Moore et al., Moore's Federal Practice, q 60.21 [4]{a], § 60.21[4)][a], [b] (3d ed. 1999) ..... 17 Federal Advisory Committee Notes FRAP 40 ......... 8,9 Ninth Circuit Advisory Committee Note to Circuit po PLAS FS ere reer ere Tr Tree ee eee e eT 7 Ninth Circuit Advisory Committee Note to Circuit CE 2d MRA nn kc eam dae ieee warns seus 7 Ninth Circuit Notice of Proposed Amendments to Circuit Rules (Aug. 8, 2003) ........-0 cee eees 11 Ninth Circuit General Orders, 9 6.1] ........+40+005: 8 Department of Intericr Departmental Manual, if 2 eer er errr Serr rr rrr. fois et 3 ] Petitioners respectfully pray that a writ of certiorari issue to review the orders of the Court of Appeals for the Ninth Circuit entered on May 17, 2004, April 5, 2004, and February 25, 2004. In addition, or alternatively, Petitioners respectfully pray under Rule 20 for writs of mandamus and/or prohibition against Respondents Clerk, District Court, and the federal agency respondents, in aid of this Court’s appellate jurisdiction. OPINIONS BELOW The Court of Appeal’s May 17, April 5, and February 25, 2004 unpublished orders are reprinted in the appendix at la, 28a, & 47a. JURISDICTION Jurisdiction in the District Court was invoked under 28 U.S.C. §§ 1331, 1346, 1361, 1491(a) (1), & 2201, and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551, et seq.. Jurisdiction in the Court of Appeals was invoked under 28 U.S.C. § 1651(a), and the judicial review provisions of the Federal Aviation Act, 49 U.S.C. § 46110, Independent Transportation Board Act, 49 U.S.C. § 1153, and the APA, 5 U.S.C. §§ 701-706. Jurisdiction in this Court to review the final decision of the Ninth Circuit is invoked under 28 U.S.C. § 1254,! and for the requested writs, 28 U.S.C. § 1651(a), 49 U.S.C. §§ 46110(e) & 1153, and R.Sup.Ct. Rule 20. CONSTITUTIONAL PROVISION AND STATUTES The Fifth Amendment, United States Constitution, states in perti- nent part: “No person shall be...deprived of life, liberty or property without due process of law”. 28 U.S.C. § 46(c) states: Cases and controversies shall be heard and determined by a court or division of not more than three judges, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in active Because the Ninth Circuit failed to rule on Petitioners’ timely Petition for Rehear- ing and Suggestion for Rehearing En Banc, filed March 22, 2004, the 90 day certio- rari petition filing time remains tolled. FRAP Rules 35& 40(a)(1); R.Sup.Ct. R. 13. Alternatively, Petitioners are timely being within 90 days of the last order. See Hibbs v. Winn, 542 U.S. ___ (2004) (briefing order left unresolved whether the court would modify its judgment so that petition for a writ of certiorari filed within 90 days of briefing order was timely emphasizing finality). 2 service. A court in banc shall consist of all active circuit judges of the circuit. The All Writs Act, 28 U.S.C. § 1651, provides that: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”. 28 U.S.C. § 1651(a). 28 U.S.C. § 1657 (“Priority of civil actions”) is reprinted in the appendix at 152a. 28 U.S.C. App. Federal Rules of Appellate Procedure (“FRAP”) Rule 35(c) “Time for Petition for Hearing or Rehearing En Banc” states: “A petition for a rehearing en banc must be filed within the time prescribed by Rule 40 for filing a petition for rehearing.”. FRAP Rule 40(a) (1) states: (1) Time. Unless the time is shortened or extended by order or local rule, a petition for panel rehearing may be filed within 14 days after entry of judgment. But in a civil case, if the United States or its officer or agency is a party, the time within which any party may seek rehear- ing is 45 days after entry of judgment, unless an order shortens or extends the time. Ninth Circuit Rule (“Cir.R.”) 27-10 “Motions For Reconsideration” is reprinted in the appendix at 149a. Relevant portions of the Federal Aviation Act, 49 U.S.C.§§ 40101 & 46110; Independent Transporta- tion Board Act, 49 U.S.C. §§ 1116 & 1153; and, the APA, §§ 551(6- 10) & 554, 703 & 706 are reprinted in the appendix at pp.126-138a. The challenged local admission rule, L.R. 83, is reprinted in the appendix at p.146a. - STATEMENT OF THE CASE Petitioner Arment, an American citizen, is a fully qualified Fed- eral Aviation Administration (“FAA”) licensed commercial pilot holding an FAA Federal Aviation Regulations Part 135 single pilot commercial operator’s certificate with operating specifications for a specialized low-level commercial airplane flying business.” He is the president and sole owner of Research Air, Inc. that owns a Christen Husky two-seat airplane uniquely equipped to fly low-level wildlife, 2The complaint allegations, taken as true, are at App. O, 82-110a and the Peti- tion allegations are at App. J, 51-73a. 3 waterfowl, and fish tracking missions for the Department of the Inte- nor’s (“Interior”) Fish and Wildlife Service (“FWS”), and for other federal agencies. Over the course of about 12 years he has made a large investment in his flying business—about $300,000—and make more competitive his commercial civil aviation business purchasing a two-seat airplane and modifying the airplane to include sophisticated radio frequency detection and global positioning system equipment. Mr. Arment and Research Air reside in Montana and flew interstate to Utah when hired by Interior to fly low-level (below 500 feet) endan- gered species tracking missions for the FWS Colorado River F ishery Project. Interior requires possession of an interagency pilot qualifica- tion card (“pilot card”) in addition to FAA commercial operator (Part 135), airman, and medical certificates for contract pilots, 351 DM 3, § 3.5D, and Mr. Arment has held such pilot card since 1982. Mr. Arment is a highly experienced well-respected low-level pilot with 28 years of flying experience. From 1992 through now in 2004 Petitioner Arment has never received any unsatisfactory marks on FAA or OAS flight evaluation checks. Interior excluded Mr. Arment and Research Air from further commercial flight contracts on March 26 and 27, 2002 without any proper notice to them alleging they violated federal aviation regulation § 91.119(c) (App. at 58a) by flying too close to a power- line while flying low-level for Interior.3 This affects at a minimum low-level flight contracts for Interior, Department of Agriculture, Forest Service, United States Navy, and the Coast Guard. Interior publicizes on the Internet lists of qualified contract pilots and air- craft (available at http://www.oas.gov/source). Interior requires all ordering offices to ensure a contract pilot possesses the Interior pilot card and is listed on the approved vendor and pilot lists before con- tract flights.* Unless Mr. Arment’s and Research Air’s names appear on Interior’s approved vendor lists, they are automatically disquali- fied from contract award no matter how responsible they are. They 30AS’s rules require a flight check upon suspicion of unsafe piloting following an OAS “incident with potential”, 351 DM 3, 4 3.4E. Interior refused to evaluate Mr. Arment by an OAS flight check after their alleged “incident with potential.” ‘This includes all low-level federal flight contracts Petitioners might bid or pro- pose on. No card, no contract. State and tribal organizations that would hire pilots to fly low-level tracking missions aware of an Interior pilot card suspension would not hire the suspended pilot. 4 cannot fly for non-government entities that either require possession of the OAS card or cannot economically perform such contracts without concurrent federal contract flights. As a law-abiding entre- preneur Mr. Arment structured and developed his business based on governmental low-level flying contracts. His two-seat aircraft filled with sophisticated electronic gear cannot be used economically for other kinds of commercial flight operations. Interior’s actions took his investment; he is out of business.® Mr. Arment and Research Air filed suit in United States district court on July 2, 2003 against Respondents Norton, Smith, Gal- loway, Interior and United States. The complaint states ten counts including two Bivens’ causes of action against defendants Smith and Galloway sued individually. Plaintiffs alleged defendants deprived Arment and Research Air of substantive and procedural due process and committed an unauthorized taking in violation of the Fifth Amendment, took unauthorized agency action and arbitrary and capricious agency action lacking substantial evi- dence, a rational basis and neutral and detached decisionmakers in violation of the APA. Plaintiffs alleged defendants had no law- ful authority to impose and revoke the pilot card grounding them from commercial operations when they fully complied with the FAA aviation regulations and Interior had represented to them it had exemptions from those regulations, that defendants violated the Federal Aviation Act and regulations by unilateral determina- tions of FAA violations, and that defendants illegally suspended, excluded and de facto debarred Plaintiffs from federal government contracting. Plaintiffs moved for a temporary restraining order and a preliminary injunction the same day. The district court denied the TRO on July 9, 2003, stating Plaintiffs failed to satisfy Rule 65(b) “because the facts set forth in their affidavit or verified complaint do not demonstrate ‘immediate and irreparable injury, loss, or damage’. Instead, Plaintiffs detail events that happened a year ago or more.” Respondent District Court also denied Plaintiffs’ attorney Ditton’s admission pro hac vice citing L.R. 83.3(e) (2) that excludes resident attorneys not members of the Montana State Bar. SResearch Air cannot survive with less than 150 hours low-level flying per year and has only realized less than $3,400 since May 6, 2003. Expenses since January 1, 2003 are over $22,900. At this rate, Research Air is out of business. 5 Defendants filed a motion to dismiss for lack of subject matter juris- diction and lack of personal jurisdiction over defendants Smith and Galloway. They asserted the Contract Disputes Act, Tucker Act, and APA barred Plaintiffs’ causes of action. On September 25, 2003 they informed the district court they had no reply to Plaintiff’s preliminary injunction motion supplement based on the Administrative Record. On September 29, 2003 Plaintiffs’ attorney Ditton moved the district court to waive the local admission rules for his full admission. The district court never ruled on the preliminary injunction motion, never ruled on defendants’ motion to dismiss, denied Mr. Ditton’s admis- sion pro hac vice or with waiver, permitted Plaintiffs’ local counsel to withdraw, and ordered Mr. Arment and Research Air to either proceed pro se (leaving Research Air unrepresented) or discharge Mr. Ditton and retain new counsel). Defendants never answered the complaint. When the district court judge denied the motion for admission with waiver, he stated Mr. Ditton was a Montana resident, “had not taken and passed the Montana bar examination,” and: An attorney who resides in Montana must be a member of the State Bar in order to practice in its federal courts. This is a simple rule. While Mr. Ditton’s argument pertaining to the inequality of Local Rule 83.3’s residency requirement of United States Attorneys and non-United States Attorneys is interesting, it will not be addressed here. A simple remedy is available to Mr. Ditton that would permit him to practice law in the State of Montana, and, thus, in Montana’s federal courts—obtain a license to do so by successfully passing the Montana bar examination. App. L at 75-77a (emphasis in original).? Respondent District Court on January 7, 2004 scheduled a hearing on Petitioners’ local counsel withdrawal motion for January 30, 2004. App. K at 74a. *All of Mr. Arment’s and Research Air’s papers filed in the District Court were properly signed by local counsel, including the complaint, and the motion and sup- porting brief for preliminary injunction. ™r. Ditton cannot take and pass the Montana Bar Examination because Supreme Court of Montana refused to let him do so. He has done something about that. See Ditton v. Supreme Court of Montana, No. CV-04-27-H-CCL. 6 Petitioners then submitted their writs petition (“Petition”) to the Ninth Circuit in overnight mail on January 29, 2004. App. J at 51a. Citing FRAP Rule 21 and 28 U.S.C. § 1651, they sought writs of prohibition and mandamus in aid of the circuit court’s jurisdiction. Although Respondent Clerk received the Petition on January 30, 2004, with Petitioners’ check in the amount of the $250.00 as pay- ment for the original proceedings filing fee, Respondent Clerk did not docket their Petition until February 2, 2004. App. Q at 113a. On February 2, 2004 circuit number 04-70454 was opened. App. P at 11la. On February 6, 2004, circuit number 04-70572 was opened with the Petition filed therein as of February 2, 2004. App. H at 49a; Q at 113a. Only Petitioners’ two-page supplement to motion for expedited consideration was filed in 04-70454 on February 9, 2004. App. P at 11la. Respondent Clerk then demanded Petitioners pay an additional $255.00 as an appeal filing fee for 04-70572 although Petitioners had not filed any notice of appeal. App. at 48a. Petitioners refused. When Mr. Ditton belatedly learned about this he promptly complained to the clerk’s office, the staff attorneys’ office, and the circuit executive. See App. B at 12a and 4-Sa. After complaining to staff attorneys Deiss and Hale on February 24 and 25, 2004, a panel order drafted by a staff motions attorney/deputy clerk® denying the Petition was faxed to Mr. Ditton and defendants’ counsel within two hours of his last conversa- tion with Ms. Hale. Petitioners were never told that if they asked for urgent consideration by telephone of their motion for expedition the Petition itself would be decided in two hours. Without ordering a response to the Petition from defendants the Court of Appeal’s tersely denied the Petition and then stated all motions were denied as moot. The decision states only that Petition- ers had not “demonstrated that this case warrants the intervention of this court by means of the extraordinary writ of mandamus. See Bauman v. United States Dist. Ct., 557 F.2d 650 (9th Cir. 1977).” App. F at 47a. Respondent District Court still has not ruled on the July 2, 200 preliminary injunction motion. Petitioners submitted a Petition For Rehearing and Suggestion For Rehearing En banc pursuant to FRAP Rules 35 and 40 on March 17, 2004 filed March 22, 2004. App. E at 29a. Respondent Clerk summar- 8App. F at 3a. This is apparent from the face of the order that states the court’s word processing filename as “s:\MOATT\ panelord\2.04\cd\04-70454.wpd”. 7 ily ruled the rehearings petition as untimely stating only that: “The petition for rehearing and suggestion for rehearing en banc is denied as untimely. See 9th Cir. R. 27-10.”. App. D at 28a. A “Motions Attorney/Deputy Clerk” signed this order “For the Court” with “9th Cir. R. 27-7 and General Orders/Appendix A” appearing in her signa- ture block. /d. Petitioners moved to vacate this order by motion filed April 17, 2004. App. C at 14a. This motion was summarily denied by order dated May 17, 2004. App. A at la. Respondent Clerk has not filed or distributed the Petition For Rehearing and Suggestion For Rehearing En banc to the court. REASONS FOR GRANTING THE WRIT ' The Ninth Circuit’s 14 day rule violates FRAP Rules 35, 40(a) ( 1) & 47; 28 U.S.C. §§ 46(c), 2071 & 2702, this Court’s precedent, and conflicts with all other circuit courts of appeals. Moreover, in this case, the 14-day rule results in fraud on the court. Petitioner’s seek orders or writs from this Court to protect the Court’s appellate juris- diction to: have Respondent District Court decide Petitioner Arment and Research Air’s preliminary injunction motion pending since July 2, 2003; have Respondent Catterson file and distribute Petition- ers’ rehearings petition; have Respondent Interior and its officials return Mr. Arment’s pilot card, reinstate Mr. Arment and Research Air on Interior’s qualified pilot and aircraft lists, and remove them from Interior’s blacklists; restrain Interior from encroaching upon the exclusive jurisdiction of the Department of Transportation; and, invalidate or direct the Ninth Circuit to determine the constitutional- ity of, Respondent District Court’s local admission rules. I. THE COURT OF APPEAL’S 14-DAY FILING RULE: A. VIOLATES FRAP RULES 35, 40(a) (1) & 47; 28 U.S.C. §§ 46(c), 2071 & 2702 The Court of Appeals denied Petitioners rehearing only by the authority of Cir.R. 27-10 that imposes the 14-day rule and states: “The rule applies to any motion seeking review of a motions panel order, either by the panel or en banc, and supersedes the time limits set forth in Fed. R. App. P. 40(a) (1) with respect to such motions. (new 1-1-04).”. App. X at 146a. Not all writ petitions are decided by motions panels, some are decided by regular panels. See Circuit Advisory Committee Note to Rules 21-1-4. App. Y at 147a. If a 8 motion is decided by an opinion en banc review is available, yet not if a mandamus petition is summarily denied in an order.? Motions panels are not as deliberate as regular panels, are controlled or at least heavily influenced by staff attorneys and clerks, and decisions can be made by less than three judges. The Court of Appeal’s reason- ing that Cir.R. 27-10 pertaining to motions supersedes FRAP Rule 40(a) (1)’s filing time limits because the writ petition was denied by a motions panel is specious. Petitioners’ rehearings petition clearly sought to correct errors of law and fact and inconsistencies with other circuits in the denial of their writs petition on the merits, and not once mentioned the denial of their motion for expedited relief. App. E at 29-46a. Having a motions panel review writ petitions does not mean ipse dixit a writ petition is a motion. To arrive at the Court of Appeal’s result one has to distort the English language: “peti- tion” means “motion”; “petition for rehearing” means “motion for reconsideration”; and, “review of a panel decision on the merits” means “review of clerk or motions attorney's order”. This is wholly unjustified. Missouri v. Jenkins, 495 U.S. 33, 48 (1990) (important differences among “suggestion for rehearing en banc,” “petition for rehearing” and “motion”). The Court of Appeal’s claimed power to supersede the Federal Rules of Appellate Procedure is nonexistent. FRAP Rule 40(a) (1) plainly states Petitioners had 45 days within which to file a Peti- tion for Rehearing and Suggestion for Rehearing En banc. These rehearing petitions are provided as a statutory right to Petitioners. 28 U.S.C. App. FRAP Rules 35 & 40. A statutory rule must be applied “according to its terms.” United States v. Ron Pair Enter., Inc., 489 U.S. 235, 241 (1989). The second sentence in Rule 40(a) (1) begin- ning with “but” plainly eliminates whatever authority a circuit court would otherwise have to reduce via circuit rule the 45 day time limit. The second sentence allows such reduction only in a court th Cir. Gen. Orders, ¥ 6.11, states: The Clerk shall enter the receipt or filing of a suggestion for rehearing en banc of a motion previously considered by a motions panel and transmit two copies of it to the appropriate motions attorney for processing. The Clerk shall retain the remaining copies until further direction by a judge or motions attorney. ...If the motion was decided by opinion, copies of the suggestion will be circulated to all active judges. The suggestion shall be referred by the motions attorney to the panel which entered the order in issue. 9 order in a specific case. There was no such order in this case. Absent such order, Petitioners reasonably relied upon and fully complied with FRAP Riles 35 and 40(a) (1). Assuming arguendo any ambiguity in Rule 40(a) (1) exists, the Notes of Advisory Committee on Rules, 1994 Amendments to the Federal Rules of Appellate Procedure Rule 40, emphatically state: Although the first sentence of Rule 40 permits a court of appeals to shorten or lengthen the usual 14 day filing period by order or by local rule, the sentence governing appeals in civil cases involving the United States purposely limits a court’s power to alter the 45 day period to orders in specific cases. If a court of appeals could adopt a local rule shorten- ing the time for filing a petition for rehearing in all cases involving the United States, the purpose of the amendment would be defeated. App. Z at 15la. These advisory committee notes are “entitled to great weight”. Western Pacific Railroad Corp. v. Western Pacific Railroad Co., 345 U.S. 247, 261 (1953). Thus, the Court of Appeals had no power to supersede the Federal Rules of Appellate Procedure. Its supercession rule violates 28 U.S.C. § 2701(a) (“Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed under section 2072 of this title.”); § 2072(b) (“All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.”’); and, 28 U.S.C. App. FRAP Rule 47(a) (1) (circuit court local rules must be “consistent ... with Acts of Congress and rules adopted under 28 U.S.C. § 2072”); see United States v. National City Lines, 334 U.S. 573, 589 (1948) (“general power to supervise the administration of justice in the federal courts ... does not extend to disregarding a val- idly enacted and applicable statute or permitting departure from it”); Schacht v. United States, 398 U.S. 58, 64 (1970) (judiciary statute takes priority over the “procedural rules adopted by the Court for the orderly transaction of its business.”); Kovilic Constr. Co. v. Miss- brenner, 106 F.3d 768 (7th Cir. 1997) (“courts may not exercise their inherent powers in a way that actually conflicts with constitutional or statutory provisions,” citing Bank of Nova Scotia v. United States, 487 10 U.S. 250, 254 (1988), and 28 U.S.C. § 2072(b)). Local court rules that conflict with the FRAP are void. 28 U.S.C. § 2071. The Court of Appeal’s rule also conflicts directly with 28 U.S.C. § 46(c) as authoritatively interpreted by this Court. In Western Pacific, supra, the Court applied 28 U.S.C. § 46 and reversed a panel per curiam decision striking a litigant’s rehearings petition “as being without authority in law or in the rules or practice of the court”). 345 U.S. at 261 This Court stated that parties appearing before the Court of Appeals had “the right to know the administrative machinery that will be followed” in processing rehearing and en banc petitions. The Court also stated: : We hold that the statute does not compel the court to adopt any particular procedure governing the exercise of the power; but whatever the procedure which is adopted, it should be clearly explained, so that the members of the court and litigants in the court may become thoroughly familiar with it; and further, whatever the procedure which is adopted, it should not prevent a litigant from suggesting to those judges who, under the procedure established by the court, have the responsibility of initiating a rehearing en banc, that his case is an appropriate one for the exercise of the pewer. 345 US. at 267-68. See Jenkins, supra, 495 U.S. at 48 (“Regu- lar adherence to published rules of procedure best promotes the principles of fairness, stability, and uniformity that those rules are designed to advance.”). Here, the Court of Appeal’s 14-day fil- ing time rule cut off from the entire court Petitioners’ suggestion, including their fraud on the court allegations, that en banc rehearing was appropriate. When Petitioners moved to vacate the filing denial order the Court of Appeals (probably the deputy clerk) again ada- mantly denied review and peremptorily told Petitioners “no further filings” would be accepted. (So much for the logic of a motion for reconsideration available after denial of a motion). Cir R. 27-10 violates 28 U.S.C. § 2071(b) for failure to give “appropriate pub- lic notice and an opportunity for comment” that writ petitions are motions, rehear- ings petitions are “motions for reconsideration,” 45 days is 14 days and FRAP 35 and 40 petitions for denial of writ petitions are eliminated. 1] The Court of Appeal’s decision conflicts directly with Western Pacific Railroad, supra, by preventing Petitioners from suggesting to the judges, who under the procedure established by the circuit court have the responsibility of initiating a rehearing en banc, that their case is an appropriate one for the exercise of the power, and by curtailing its use indiscriminately." See William H. Banks Ware- houses, Inc. v. Watt, 205 F.2d 44 (9th Cir.) (per curiam) cert. den., 74 S.Ct. 43 (1953) (vacating panel denial of rehearing en banc upon rehearing petition filed within 25 days without determination by the active judges of the court). Petitioners had no actual notice or knowledge that their rehear- ings petition filed on March 22, 2004—within 45 days of February 25, 2004—would be untimely, or that FRAP rehearing petitions had been prohibited.!2 No FRAP Rule 21 local rule warned Petitioners that FRAP rehearing petitions must be filed within 14 days, not 45 days.!3 Nonetheless, the Court of Appeals applied its local rule supplementing FRAP Rule 27 pertaining to motions to transform a FRAP rehearings petition into an motion that could only be recon- "The Ninth Circuit’s en banc rehearing procedures were discussed in Calderon v. Thompson, 523 U.S. 538, 550, 552 (1998). 2When noticing for comment proposed amendments to Cir.R. 27-10, the Ninth Circuit created new subparagraphs (a) and (b) to this circuit rule and deleted from the categories of motions pertaining to a court order “rehearings...entered by a motions panel must be filed within 14 days of the date of the order,” under new (a) “Filing For Reconsideration”. By removing the reference to “rehearings” from “filing for reconsideration” the Ninth Circuit actually reinforced the natural and logical conclusion that rehearing petitions are not motions for reconsideration of an order. New (b) “Court Processing” states the language: “This rule applies to any motion seeking review of a motions panel order, either by the panel or en banc, and supersedes the time limits set forth in Fed.R.App.P. 40(a) (1) with respect to such motions.”. App. V at 144a. This notice of proposed amendments does not notice any proposed amendment to FRAP Rules 21, 35 or 40. Id. 13Cir.R. 21-1, “Extraordinary Writs,” states: “Petitions for extraordinary writs shall conform to and be filed in accordance with the provisions of FRAP 21(a).”. Recent Ninth Circuit decisions permitting FRAP 35 & 40 rehearing petitions in mandamus proceedings include Ellis v. United States District Court, 294 F.3d 1094, 1099-1100 (9th Cir. 2002), withdrawn, 313 F.3d 1094 (9th Cir. 2002), rev’d on rehearing en banc, 356 F.3d 1198 (9th Cir. Feb. 4, 2004) (United States real party in interest); Miller v. Gammie, 335 F.3d 889, 895 (9th Cir. 2003) (en banc) (Nevada state respondent); McClatchy Newspapers , Inc. v. United States District Court, 288 F.3d 369 (9th Cir. 2002) (United States a named real party in interest). 12 sidered through a motion filed within 14 days of February 25, 2004, or by March 10, 2004. That violates the aforementioned statutes, and also FRAP Rule 47(b) that states: No sanction or other disadvantage may be imposed for non- compliance with any requirement not in federal law, federal rules, or the local circuit rules unless the alleged violator has been furnished in the particular case with actual notice of the requirement. Following the Court of Appeal’s reasoning to its logical conclu- sion, denials or grants of writ petitions by order cannot be reheard at all pursuant to a FRAP Rule 35 or Rule 40 rehearing petition, only by Cir.R. 27-10 motions for reconsideration that are not circulated to all Ninth Circuit judges in active service. The Court of Appeals arbitrarily cut off an entire class of cases—wnit petitions decided by motions panels—from panel rehearing or en banc review, limited panel rehearings or the opportunity for en banc review to only those writ petitions fortuitously decided by a regular panel, while exempt- ing appeals treated as mandamus petitions since they are not con- sidered by motions panels, see e.g., Miller, supra, 335 ¥.3d at 895 (treating notice of appeal where appellate jurisdiction was lacking as a petition for a writ of mandamus); National Org. for Reform of Marijuana Laws v. Mullen, 828 F.2d 536, 541 (9th Cir. 1987) (court has discretion to treat appeal as petition for writ of mandamus). No case bifurcation or demand for additional filing fees occurred in those cases. Eliminating rehearings and en banc review makes impotent the Court of Appeal’s extraordinary writs arsenal. Egregiously wrong decisions such as that presented here are held uncorrectable because of an ironclad, heretofore unrevealed, 14-day rule that jettisons the safety valve function of FRAP Rules 35 and 40. See Mariscal-Sando- val v. Ashcroft, 370 F.3d 851, 856 (9th Cir. May 28, 2004) (refusing to dissolve removal stay immediately upon filing opinion denying peti- tion for review because “Mariscal-Sandoval still retains the ability to petition this panel for rehearing, or to petition the court as a whole to review our decision en banc. Until any further petitions to this panel or the entire court are resolved, we cannot say that Mariscal-Sandoval has no probability of success on the merits.”). 13 The Ninth Circuit’s peculiar rules and actions violate the purpose of en banc review. Western Pacific, supra, 345 U.S. at 262 (“... there is no reason to deny the litigants any chance to aid the court in its effective implementation of the statute.”); Textile Mills Securities Corp. v. Commissioner, 314 U.S. 326 (1941) (sustaining the author- ity of the courts of appeals to sit en banc, “Conflicts within a circuit will be avoided. Finality of decision in the circuit courts of appeal will be promoted. Those considerations are especially irnportant in view of the fact that in our federal judicial system these courts are the courts of last resort in the run of ordinary cases.”); Miller v. Gammie, supra, 335 F.3d at 900 (“We must recognize that we are an intermediate appellate court. A goal of our circuit’s decisions, including panel and en banc decisions, must be to preserve the con- sistency of circuit law. The goal is codified in procedures governing en banc review. See 28 U.S.C. § 46; Fed.R.App.P. 35.”). The Court of Appeal’s drastically truncated filing time rule is fur- ther infelicitous given that this circuit covers the largest geographic territory in the nation, does not accept facsimile filings without spe- cial permission, regular first class mail time averages four days from Montana," and even upon receipt the Respondent Clerk can delay filing papers, in this case by as much as three days. See App. I at 50a. Given these circumstances and the totality of the Ninth Circuit’s caseload, rehearing is the only safety net for litigants before the court to point out the Court of Appeal’s decisional inconsistencies and conflicts. Through apparent over-reliance on staff attorneys and clerks, the Ninth Circuit precludes proper judicial consideration of a litigant’s papers first at the motions panel level and then at the established en banc rehearing procedures. Factual circumstances presented in this case suggest that the Ninth Circuit impermissibly delegates judicial power to the Clerk and deputy clerk/staff attorneys neither appointed by the President nor confirmed by the Senate in derogation of Article (I, United States Constitution. In this case staff attorneys used as clerks without authority apparently controlled the“outcome of Peti- tioners’ original proceedings. See App. P at 11 1a (stating: “Terminated Guam, the Northern Mariana Islands, Hawaii and Alaska are even more distant from the Clerk’s office located in San Fransisco, California. The Ninth Circuit’s 14- day rule effectively penalizes distant litigants and favors California litigants. 14 on the Merits after Submission Without Oral Hearing; Denied; Writ- ten, Unsigned, Unpublished. Ferdinand F. Fernandez, William A. Fletcher, Richard C. Tallman.”) (emphasis supplied). “If the essential, constitutional role of the judiciary is to be main- tained, there must be both the appearance and the reality of control by Article III judges over the interpretation, declaration, and applica- tion of federal law.” Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76-81 (1982); see Mariscal-Sandoval, supra, 370 F.3d at 860 (Beezer, J., concurring) (“In addition to being unauthorized, the practice of permitting staff attorneys to grant stays of removal deprives the judges of this court of an important judicial obligation established by Congress for granting due process to an ever increasing number of undocumented aliens who seek to reside in the United States as permanent residents.”).!5 Congress’s authorization for employment of staff attorneys, 28 U.S.C. § 715, did not rewrite the Constitution. Congress limited the power and duties of clerks of court, 28 U.S.C. § 711 and prohibited clerks from practicing law, 28 U.S.C. § 955 (“The clerk of each court and his deputies and assistants shall not practice law in any court of the United States.”). See generally Gwaduri v. INS, 362 F.3d 1144 (9th Cir. 2004) (discussing general orders and motions attorneys). Not surprisingly, the Ninth Circuit’s peculiar 14-day rule conflicts with every other federal circuit court of appeals that has considered the issue. Mancuso v. Herbert, 166 F.3d 97, 99-100 (2nd Cir. 1999) (“The Federal Rules of Appellate Procedure and this court’s Local Rules make no mention of “motions for reconsideration.” There- fore, we construe the government’s motion for reconsideration as a petition for rehearing pursuant to Fed.R.App.P. 40 and Local Rule 40.”); Thomas v. United States, 328 F.3d 305, 308 (7th Cir. 2003) (“For most purposes it makes sense to limit the phrase ‘petition for rehearing’ to a request for review of a panel’s decision on the merits. Someone displeased with another kind of decision—for example, an order by a motions judge denying a request to file a brief longer than the cap in Fed.R.App.P. 32—files a motion for reconsideration. ...Consequently, a document (whether styled “petition for rehear- ing” or “motion for reconsideration”) that seeks review by the court en banc will be distributed to all active judges.”). See Youghiogheny 1SClerks and motions attorneys do not take the judicial oath in 28 U.S.C. § 453. 15 and Ohic Coal Co. v. Milliken, 200 F.3d 942, 952 (6th Cir. 1999), cert. den., 531 U.S. 818 (2000) (“...Rule 40(a) now grants all parties to a civil case in which the United States or a federal agency or offi- cer is a party forty-five days from the entry of judgment to petition for rehearing,...”). This buried superseding rule also conflicts with all other circuit courts of appeal rules.'® B. CREATES TRAPS FOR THE UNWARY CAUSING PERNICIOUS EFFECTS The Ninth Circuit’s provincial rule creates traps for the unwary, calling for exercise of this court’s supervisory powers. Any attor- ney or pro se litigant seeking information about writ petitions and petitions for rehearing would not logically look under circuit rules conceming motions when explicit rules exist, including circuit rules, for writ petitions, panel rehearing petitions, and petitions with sug- gestions for rehearing en banc. FRAP Rules 21, 35 or 40. There is no 16The First, Second, Third, Seventh and Tenth Circuits have no rules contradict- ing or superseding FRAP Rule 40(a) (1) nor mention “reconsideration”. The Third, Fourth, Fifth, Eighth, D.C. and Federal Circuit have no rules contradicting or super- seding FRAP Rule 40(a) (1) and have specific reinforcing rules. 4th Cir.R. 40(c) states: “The Court strictly enforces the time limits for filing petitions for rehearing and petitions for rehearing en banc. The Clerk’s Office will deny as untimely any petition received in the Clerk’s Office later than 45 days after entry of judgment in any civil case where the United States, or an agency or officer thereof is a party, or 14 days after the entry of judgment in any other case.”. 5th Cir.R. 35.4 states: “Any petition for rehearing en banc must be received in the clerk’s office within the time specified in FED.R.APP.P. 40.”; see also Sth Cir.R. 40.4. 5th Cir. R. 27.1 states: “The clerk’s action is subject to review by a single judge upon a motion for reconsideration made within the 14 or 45 day period set by FED.R. APP.P.40.”. 6th Cir.R. 27 (g) “Motion for Reconsideration” states: “A party may seek rehearing of a judgment of this Court pursuant to FRAP 40.”. The Eighth Circuit allows reconsideration only of a procedural motion decided by a clerk or single judge decision. The Eleventh Circuit excludes from motions for reconsideration matters governed by FRAP 40, 11th Cir. R. 27-2, and under FRAP Rule 40 states: “A petition for rehearing must be filed within 21 days of entry of judgment, except that a petition for rehearing in a civil case in which the United States or an officer or agency thereof is a party must be filed within 45 days of entry of judgment. Judgment is entered on the opinion filing date.”. 11th Cir.R. 40-3. Fed.Cir.R. 27(1) (“Review or Reconsideration of the Order of a Single Judge or Panel of Judges”) states: “Except for a dispositive order issued by a panel, which time will be governed by Federal Rule of Appellate Procedure 40(a) (1).”. D.C. Cir.R. 35 states: “In all cases in which the United States or an agency or officer thereof is a party, the time within which any party may seek panel rehearing or rehearing en banc is 45 days after entry of judgment or other form of decision.”. 16 corresponding indication at all suggesting that in the Ninth Circutt, FRAP Rule 40(a) (1)’s 45 days means 14 days or that FRAP 35 and 40 do not apply to writ petitions. Litigants do not know in advance whether FRAP Rules 35 and 40 rehearing petitions are considered motions to reconsider subject to the 14-day rule. No statement in the Court of Appeals order denying the writ petition advised Petition- ers that FRAP Rules 35 and 40 rehearing petitions had to be filed as “motions for reconsideration” and within 14, not 45 days.!” Petitioners’ rehearings petition was received within the time established by published Ninth Circuit opinions interpreting FRAP Rule 40, Bianchi v. Perry, 154 F.3d 1023, 1024 (9th Cir. 1998) (“Because an officer of the United States was a party, the deadline for filing a petition for rehearing was 45 days from April 9, under Federal Rule of Appellate Procedure 40(a).”), and motions, Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995) (“To the extent that Bonin’s motion requests correction of factual statements contained in our previous opinion, it is procedurally barred due to his failure to seek such corrections by means of a timely petition for rehearing in accordance with Federal Rule of Appellate Procedure 40.”). The internally and outwardly inconsistent Cir.R. 27-10 creates pernicious effects. Absent the peculiar and wrongheaded usurpation of FRAP Rule 40, Petitioners’ rehearings petition would have been considered by all judges in accordance with the Court of Appeal’s established procedure for en banc consideration. Shortening by two-thirds the time within which to petition for rehearing preju- dices Petitioners by unfairly depriving them of any opportunity for en banc review, and also prejudices government attorneys and the solicitor general. Further, motions for reconsideration do not toll time within which to petition for certiorari to this Court.'® The effect 17As one Ninth Circuit judge (whose name was apparently taken in vain here) stated in a different context: “The result is nonsensical and certainly not “fully intelligible to those [ ]familiar with the case”. Hart v. Massanari, 266 F.3d 1155, 1177-78 (9th Cir. 2001) (Kozinski, J.). . 18Petitions for rehearing authorized by Rule 40(a) “toll[ ] the start of the period in which a petition for certiorari must be sought until rehearing is denied or a new judgment is entered on the rehearing.” Jenkins, supra, (citing Dept. of Banking v. Pink, 317 U.S. 264 (1942)). 17 of the 14-day rule applied to a rehearing petition filed with 45 days potentially deprives Petitioners of their Statutory certiorari rights in this Court, 28 U.S.C. § 2101, by eliminating tolling upon rehear- ing. Denying any rehearing affects the appellate jurisdiction of this Court. 28 U.S.C. § 2101. C. AMOUNTS HERE TO FRAUD ON THE COURT When docketing the Petition, Respondent Clerk impermissibly split one original proceeding into two cases, filing the Petition received January 30, 2004 on February 2, 2004 in docket number 04-70572 and filing Petitioners’ February 5, 2004 supplement to their Petition on February 9, 2004 in docket number 04-70454. App. P & Qat Illa & 113a. Respondent Clerk then demanded payment of $255.00 in docket number 04-70572 as a filing fee apparently to maintain the Petition she had filed therein as an appeal. App. G at 48a. ($255 is the statutorily prescribed filing fee for an appeal from district court). When Petitioners refused to pay, having already paid the $250.00 original proceedings filing fee on January 30, 2004 (app. at 46a) that Respondent Clerk deposited in the court’s bank accounts (app. at 12a), a clerk drafted an order for summary dismissal of Peti- tioners’ original proceedings in docket number 04-70454 (app. F at 47a) that did not contain the Petition. After Petitioners complained, a deputy clerk/motions attorney issued the February 25, 2004 order (purportedly with the authority of a motions panel) faxing the document to Petitioners the same day on February 25, 2004 (app. at 22a), although what Petitioners had clearly sought in writing and in subsequent telephone calls was a ruling on their motion to expe- dite consideration, expressly provided for in Ninth Circuit’s rules as a matter of right under 28 U.S.C. § 1657 (See Cir.R. 27-3) and because Respondent District Court was poised to rule on the local counsel withdrawal motion. Fraud upon the court includes fraud by bribing a judge, or tam- pering with a jury, or fraud by an officer of the court. See 12 James Wm. Moore et al., Moore’ Federal Practice, | 60.21 [4]fa], q 60.21[4][a], [b] (3d ed. 1999) (“... a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.”). Clerks are officers of the court. 28 U.S.C. §§ 221, 222, 711, 715, & 951. False statements and willful concealment SCO ri ses oem eesti name. ® Matter of Bar Examination, 187 Mont. 159, 609 P.2d 263 (1980). The local rules do not require these resident attorneys to pass a bar examination, only that they have membership in the state bar. Moreover, Montana resident attorneys who have not passed any bar examination are admitted to practice automatically if they represent the federal government while Ditton who has passed (and who was an Army JAG) is abso- lutely denied admission. Further, denying admission to Ditton to represent clients against the federal government when their attorneys are automatically admitted regardless of state bar membership or state bar exami- nation is irrational when federal government contracts, constitu- tional, administrative, and bankruptcy law are not tested by the Montana bar examination differently than any other state’s bar examination. All those subjects, if tested, are done so uniformly on a national basis by the multi-state bar examination that Ditton passed in Virginia, in February 1982 during law school. There is no higher standard or minimal level of competence achieved by passing the Montana state bar examination. See Supreme Court of Virginia v. Friedman, 487 U.S. 59, 64-70 (1988) (rejecting The justification then given as a rational basis for the “diploma privilege” was state court judges’ familiarity with the state law school. See Goetz v. Harrison, 154 Mont. 274, 280-281, 462 P.2d 891 (1969) (denying Yale law school graduate admission); Huffman v. Montana Supreme Court, 372 F. Supp. 1175 (i974) (deny- ing U. of Chicago law school graduate admission). That rationale was discarded in Matter of Bar Examination, 187 Mont. At 162 (“The wrong people are making threshold decisions that have the effect of transferring control of the admission of lawyers to the Bar away from the court of last resort, ...”. Tla argument that alternate route to gain admission by passing bar examination precluded discrimination violating the Privileges and Immunities Clause). Passing the Montana bar examination does not rationally relate to higher competence or ethical knowledge. Ditton passed the Multi-state Professional Responsibility exami- nation at the University of Montana law school in August 2000. R.59. He is already subject to the rules of professional conduct for Virginia and the District of Columbia, and would be subject to ABA’s model rules of professional conduct incorporated in the local disciplinary rules. “(W]hen a state licensing law excludes a lawyer from: practice that federal rules expressly allow, the two rules do conflict, and the state law must give way.” Sperry v. Florida, 373 U.S. 379, 383-385 (1963) (no state power of review over federal admission). States cannot impose licensing requirements on federal government con- tracts. Leslie Miller, Inc., v. Arkansas, 352 U.S. 187 (1956) (cited in Sperry, supra, 373 U.S. at 403). Attorneys practicing federal gov- ernment contracts law are not required to be members of state bars where they reside or have an office. See COFC Rule 81(b); ASBCA Rule 26; GAO, 4 C.F.R. § 21. Petitioner was denied admission pro hac vice after associating himself with local counsel. Local counsel are not required of federal nonresident attorneys. L.R. 83.3 is also unconstitutional on its face and as applied to Dit- ton because the rule preempts the practice of federal law by an out- of-state licensed and examined attorney by requiring an irrelevant resident state bar examination in violation of the Supremacy Clause, Art. VI. Passing the Montana bar examination is dispositive and controlling. “Mr. Ditton has not taken and passed the Montana bar examination.”, “a simple remedy”. R.45. Respondent District Court also stressed “Montana federal courts” as if the state has a control- ling influence over federal admission. However, “{a]dmission to practice law before a state’s courts and admission to practice before the federal courts in that state are separate, independent privileges.” Theard v. United States, 354 U.S. 278, 281 (1957); Brown v. Smith, See In re Ruffalo, 390 U.S. 544, 547 (1968) (admission to a state bar); Rit- tenhouse v. Delta Improvement, Inc., 291 F.3d 925, 930 (6th Cir. 2002) (“a valid state source of the authority to practice law: he is properly licensed by Texas.”); Zambrano v. City of Tustin, 885 F.2d 1473 (9th Cir. 1989). 72a 222 F.3d 618 (9th Cir. 2000).3! By acknowledging Petitioner Dit- ton’s “genuineness” while stating he must be a Montana bar member and take and pass the Montana bar examination Respondent District Court also improperly applied the local admission rules mechanisti- cally.*? Petitioners present a clear basis in fact and law this court should declare the local admission rules unconstitutional and under the right and justice standard order him admitted. DATED: January 29, 2004 Respectfully submitted, CHARLES R. ARMENT and RESEARCH AIR, INC. by Michael H. Ditton Attorney at Law 2210 Bridger Drive /s/ Michael H. Ditton, VSB No. 21915 Bozeman, Montana 59715 Attorney for Petitioners, and (406) 587-7386 (voice/fax) Petitioner on Part IVC supra. PETITIONERS’ CORPORATE DISCLOSURE STATEMENT Petitioner Research Air, Inc. pursuant to Federal Rules of Appel- late Procedure Rule 26.1 and Ninth Circuit Rule 21-3 hereby dis- closes that there is no parent corporation and that it is not a publicly held corporation that owns 10% or more of its stock. RESEARCH AIR, INC. by /s/ Michael H. Ditton 2United States v. Ries, 100 F.3d 1469, 1472 (9th Cir. 1996) ({[MJechanistic application of rules limiting such appearances is improper.”); Jn Re Evans, 524 F.2d 1004, 1007 (Sth Cir. 1975) (“Admission to a state bar creates a presumption of good moral character that cannot be overcome merely by the whims of...Court.”). al 73a Attorney for Petitioners CERTIFICATE OF SERVICE I hereby certify that on January 29, 2004 I served a copy of the foregoing Petition for Writs of Mandamus and Prohibition by placing a copy in U.S. mail, postage prepaid, addressed to the following: Honorable Richard F. Cebull United States District Court Judge United States District Court for the District of Montana James F. Battin United States Courthouse 316 North 26th Street Billings, Montana 59101 Respondent District Court George F. Darragh, Jr. Assistant United States Attorney U.S. Attorney’s Office P.O. Box 3447 Great Falls, Montana 59403 Counsel for Respondents/Defendants /s/ Michael H. Ditton 74a APPENDIX K UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION RESEARCH AIR, INC. AND CHARLES R. ARMENT, Plaintiffs, GALE NORTON, ET AL., Defendants, GALE NORTON, Secretary of the Interior, et al., Real Parties in Interest. CV-03-54-BU-RFC ORDER (Filed January 7, 2004] On November 20, 2003, attorneys Francis McGee and Patrick McGee filed a Motion to Withdraw as Counsel for Plaintiffs. Upon consideration thereof, IT IS HEREBY ORDERED that a hearing on said Motion is set for Friday, January 30, 2004, at 2:00 p.m. in Courtroom I of the James F. Battin Federal Building, Billings, Montana, before Judge Richard F. Cebull. The Clerk of Court is directed to notify all parties of the making of this Order. DATED this 7th Day of January, 2004. RICHARD F. CEBULL U.S. DISTRICT JUDGE ————_————— 75a APPENDIX L. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION RESEARCH AIR, INC. AND CHARLES R. ARMENT, Plaintiffs, GALE NORTON, ET AL., Defendants. CV-03-54-BU-RFC ORDER [Filed October 15, 2003) On July 2, 2003, Michael Ditton filed an Application for Admis- sion Pro Hac Vice. Mr. Ditton’s application was denied pursuant to Montana Local Rule 83.3(e)(2) which prohibits an attorney from practicing under the pro hac vice provision if the attorney resides in Montana. According to his application, Mr. Ditton currently lives in Bozeman, Montana. Recently, on September 29, 2003, Mr. Ditton filed a Petition for Admission by Waiver. Now it appears Mr. Dit- ton wishes to circumvent the local rule and has requested the Court admit him to practice law in Montana through waiver. Mr. Ditton submits to the Court he is an attorney in good standing, and the Court has no reason to question his genuineness. However, the Court is not inclined to waive a local rule and doubts its author- ity to do so. If Mr. Ditton believes the Court in anyway implied otherwise at the hearing on July 24, 2003, he is mistaken. The fact is Mr. Ditton resides in Montana so he cannot be admitted under the pro hac vice provision under Local Rule 83.3(e). In addition, Mr. Ditton has not taken and passed the Montana bar examination. EE 76a Therefore, he cannot be admitted into this Court as a member of the State Bar of Montana. Mr. Ditton’s arguments for waiver are unpersuasive. The single Ninth Circuit case he utilizes to support waiver is easily distin- guished from the facts at hand. In Poole v. Smith, the definition of “attorney” as used in the Bankruptcy Code was in dispute. 222 F.3d 618 (9® Cir. 2000). Smith was a member of the Illinois State Bar and was later admitted by the United States District Court for the District of Arizona to practice in the Arizona federal courts. /d. at 620. Smith was not a member of the Arizona State Bar. Id. Smith was handling Poole’s bankruptcy, and the trustee objected to com- pensating Smith because he argued Smith was not an “attorney” for compensation purposes under 11 U.S.C. § 101(4) because Smith was not an Arizona bar member. /d. at 621. The trustee argued the “applicable law” referenced in § 101(4) meant the practice rules promulgated by the Arizona Supreme Court. /d. at 621. Thus, Smith would not qualify as an “attorney” under the Bankruptcy Code because Arizona Supreme Court’s admission rules governed the practice in United States Bankruptcy Courts, and Smith was not licensed by the State of Arizona. Pool, 222 F.3d at 622. The Ninth Circuit disagreed, noting “Smith was duly admitted to practice in the District of Arizona as a non-resident lawyer pursuant to Ariz. R. of Practice-1.5(c).” Jd. The Ninth Circuit ruled long-standing precedent makes clear that practice before fed- eral courts is not governed by state court rules. /d. According to the Ninth Circuit, “[t]he trustee cannot employ a collateral attack based on state law to prevent Smith from practicing federal bankruptcy law in Arizona.” Jd. at 623. Mr. Ditton does not have much in common with Smith. Though Smith was not licensed to practice law in the State of Arizona, he was admitted to practice in the Arizona federal courts. Therefore, he was justifiably compensated for practicing federal bankruptcy law in Arizona. On the other hand, Mr. Ditton is not admitted to practice law in the State of Montana, nor in Montana’s federal courts. An attorney who resides in Montana must be a member of the State Bar in order to practice in its federal courts. This is a simple rule. While Mr. Ditton’s argument pertaining to the inequality of Local Rule 83.3’s residency requirements of United States Attorneys and 77a non-United States Attorneys is interesting, it will not be addressed here. A simple remedy is available to Mr. Ditton that would permit him to practice law in the State of Montana, and, thus, in Montana’s federal courts—obtain a license to do so by successfully passing the Montana bar examination. IT IS HEREBY ORDERED Mr. Ditton’s Petition for Admis- sion by Waiver is DENIED. The Clerk of Court is directed to notify the parties of the making of this Order. Dated the 15th day of October, 2003. Richard F. Cebull United States District Judge 78a APPENDIX M IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION Civil Action No. 03-54-BU-RFC RESEARCH AIR, INC. AND CHARLES R. ARMENT, Plaintiffs, V. GALE NORTON, ET AL., Defendants. ORDER [Filed July 25, 2003] Pursuant to court proceedings held on July 24, 2003, IT IS HEREBY ORDERED: 1. The United States shall provide Plaintiffs with the administra- tive record pertaining to this cause of action; 2. Plaintiffs shall have 30 days from the date they receive the record to file a response to the brief submitted by the United States; and 3. The United States will then have 10 days to respond to any new issues brought up by Plaintiffs. Upon the filing of all briefs on the preliminary injunction issue, the Court shall determine whether a subsequent hearing is neces- sary, and if so, will notify the parties at that time. The Clerk of Court is directed to notify the parties of the making of this Order. Dated the 25th day of July, 2003. Richard F. Cebull UNITED STATES DISTRICT JUDGE onmein 79a APPENDIX N UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, BUTTE DIVISION CIVIL ACTION NO. 03-54-BU-RFC RESEARCH AIR, INC., AND CHARLES R. ARMENT, 225 Coulee © Drive, Bozeman, Montana 59718 Plaintiffs, V. HONORABLE GALE A. NORTON, Secretary of United States Department of the Interior, 1849 C St., N.W., Washing- ton, D.C. 20240, STEVE R. SMITH, Director, West Area, Office of Aircraft Services, Department of the Interior, 2741 Airport Way, Boise, Idaho 83705, ROBERT GALLOWAY, Aviation Safety Manager, Office of Aircraft Services, Department of the Interior, 2741 Air- port Way, Boise, Idaho 83705 DEPARTMENT OF THE INTERIOR, 1849 C St., N.W., Wash- ington, DC 20240 AND UNITED STATES OF AMERICA, Defendants. PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION [Filed July 3, 2003] Plaintiffs Research Air, Inc. and Charles R. Arment, through their undersigned counsel, pursuant to the Federal Rules of Civili Procedure Rule 65(a), hereby move the Court for entry of an order preliminarily restraining and enjoining Defendants from continu- ing an indefinite suspension and de facto debarment of Plaintiffs from government contracting and retaining a Department of Interior Office of Aircraft Services (“OAS”) interagency pilot identification 80a card (“OAS pilot card”) previously issued to Plaintiff Arment pend- ing trial and final judgment. The grounds for this motion are that Plaintiffs suffer deprivation of constitutional rights and reputational, economic and physical injuries that are immediate, definite and irreparable. Plaintiffs prob- able success on the merits is high. Plaintiffs raise serious questions and the balance of hardships tips in their favor. Points and authori- ties and argument are provided in a forthcoming Brief filed pursuant to L.R. 7.1. WHEREFORE, Plaintiffs request that the Court grant this motion and preliminarily enjoin Defendants from continuing the indefinite suspension of Plaintiffs and de facto debarment from government contracting, compel Defendants to return the OAS pilot card to Mr. Arment and reinstate Plaintiffs’ names on Interior’s procurement vendor lists, pending trial in these proceedings. Dated: July 2,2003 Respectfully submitted, /s/ Michael H. Ditton Attorney at Law 2210 Bridger Drive Bozeman, Montana 59715 a VSB No. 21913 D.C. Bar No. 434646 Attorneys for Research Air, Inc. and Charles R. Arment Dated: July 2, 2003 /s/ Patrick D. McGee 120 West Granite Street Butte, MT 59701 8la CERTIFICATE OF SERVICE I hereby certify that on July 2, 2003 I served a copy of the forego- ing Plaintiffs’ Motion For Preliminary Injunction by placing a copy in U.S. mail postage prepaid addressed to the following: Honorable Gale A. Norton, Secretary United States Department of the Interior 1849 C Street, N.W. Washington, D.C. 20240 Honorable John Ashcroft, Attorney General United States of America U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001 William Mercer United States Attorney for the District of Montana 181 Federal Building 400 North Main Butte, Montana 59701 Steve R. Smith, West Area Director Office of Aircraft Services National Business Center United States Department of the Interior 2741 Airport Way Boise, Idaho 83705 Robert Galloway, Aviation Safety Manager Office of Aircraft Services National Business Center United States Department of the Interior 2741 Airport Way Boise, Idaho 83705 /s/ Michael H. Ditton 82a APPENDIX O UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION Civil Action No. 03-54-BU-RFC RESEARCH AIR, INC. AND CHARLES R. ARMENT, 225 Coulee Drive, Bozeman, Montana 59718 ; Plaintiffs, v. HONORABLE GALE A. NORTON, Secretary of United States Department of the Interior, 1849 C. St., N.W., Washing- ton, D.C. 20240, STEVE R. SMITH, Director, West Area, Office of Aircraft Services, Department of the Interior, 2741 Airport Way, Boise, Idaho 83705, ROBERT GALLOWAY, Aviation Safety Manager, Office of Aircraft Services, Department of the Interior, 2741 Air- port Way, Boise, Idaho 83705 DEPARTMENT OF THE INTERIOR, 1849 C St., N.W., Wash- ington, DC 20240 and, UNITED STATES OF AMERICA, Defendants. COMPLAINT FOR DAMAGES, INJUNCTIVE, AND DECLARATORY RELIEF [Filed July 3, 2003] PRELIMINARY STATEMENT 1. Defendant Department of the Interior hired Research Air, Inc. and Mr. Arment to track fish in the Green River in Colorado and Utah during winter weather with Plaintiff Arment piloting an air- plane using his unique piloting skills and his aircraft equipped with sophisticated radio frequency detection and global positioning sys- tem equipment. The Department never told Plaintiffs they would be indefinitely suspended if Mr. Arment safely flew under a power line a 83a to find the fish underneath frozen ice. Although Mr. Arment, a well- respected pilot, always accomplished the Department’s missions and has received rave reviews for himself and his aircraft, OAS imposed an indefinite suspension upon Mr. Arment and Research Air, Inc. before fully investigating the alleged incident, taking his OAS interagency pilot qualification card from him in March 2002. Defendants have blacklisted Plaintiffs from government contracting and branded Plaintiff Arment an unsafe pilot without due process of law and in violation of the Administrative Procedure Act. PARTIES 2. Plaintiff Charles R. Arment resides in Gallatin County, Montana. 3. Plaintiff Research Air, Inc. is incorporated under the laws of Montana and has its principal place of business located in Gallatin County, Montana. 4. Defendant Norton is the Secretary of the Department of Interior located in Washington, D.C. and is sued in her official capacity. 5. Defendant Smith is the West Area Director of the Office of Air- craft Services, Department of Interior, located in Boise, Idaho and is sued in his official and individual capacities. 6. Defendant Galloway is the Aviation Safety Manager, West Area Office of Aircraft Services, Department of the Interior, located in Boise, Idaho and is sued in his official and individual capacities. 7. Defendant United States imposed the indefinite suspension and de facto debarment of Plaintiffs through Defendant Department of the Interior headquartered in Washington, D.C.. JURISDICTION AND VENUE 8. This Court has jurisdiction of this action under 28 U.S.C. §§ 1331, 1346, 1361, 1491(a)(1), and 2201, and Section 10(c), Admin- istrative Procedure Act, 5 U.S.C. § 704. Venue in this case is based on 28 U.S.C. § 1391(e). 9. This action arises under the Due Process Clause and the Tak- ings Clause of the Fifth Amendment of the United States Consti- tution, the Administrative Procedure Act (“APA”), as amended, 5 84a U.S.C. §§ 551 et seg. and §§ 701 et seg., and the Federal Aviation Act, 49 U.S.C. § 40103, et seq.. FACTUAL AVEREMENTS 10. Mr. Arment is a highly skilled pilot with unique experience who has a business of flying low-level wildlife and waterfowl track- ing missions for the Department of the Interior’s Fish and Wildlife Service and for other federal agencies. Plaintiffs are parties within the meaning of 5 U.S.C. § 551(3). 11. Plaintiff Arment is the president of Research Air, Inc. and owns a Christen Husky two-seat airplane equipped with sophis- ticated radio frequency detection and global positioning system equipment he purchased to enhance and make more competitive his status as a government contractor flying missions as a contract pilot for federal agencies. Mr. Arment has invested heavily in his aircraft and flying skills to make himself competitive. Mr. Arment is fully certified and licensed by the Federal Aviation Administration (“FAA”). 12. Defendant Interior’s Office of Aircraft Services (“OAS”) has deemed Mr. Arment fully qualified to fly low-level special use activities flights for Defendants since 1982. OAS issued to Plaintiff Arment an OAS pilot interagency qualification card (“OAS pilot card”) in 1982. The OAS pilot card is a license within the meaning of 5 U.S.C. § 551(8). 13. OAS trained Plaintiff Arment for 10 years while he was employed by Defendant Interior to fly low-level special use activi- ties in Alaska. Defendant OAS represented to Plaintiffs that Defen- dants held a valid exemption in 1991 waiving FAA Federal Aviation Regulation 14 CFR § 91.119(c) prohibiting flying within 500 feet of a structure. Plaintiffs relied to their detriment upon Defendants having a valid exemption from the FAA waiving compliance with surface altitude height and obstacle restrictions. 14. OAS’s flight operation rules specifically excepts from applicability FAA Federal Aviation Regulation 14 CFR § 135.203 that prohibits visual flying lower than 500 feet vertically from the ground and closer than 500 feet horizontally from an obstacle. Air- craft Rental Agreement Supplement No. 6 4 B.8.6.1.1 (“Special Use 85a - Low Level Activities”). (Exhibit “Ex.” 1, attached hereto). This statement by Defendants constitutes a representation that flying closer than 500 feet to the surface and within 500 feet of an obstacle is lawful and safe flying. OAS’s flight operation rules also state that “Bureau projects often dictate that flights be conducted in close proximity to the ground where wires are prevalent.” This statement by Defendants constitutes a representation that flying closer than 500 feet to an obstacle is lawful and safe flying. A. Defendants’ Administrative Procedure 15. Defendant Department of Interior is an agency within the meaning of 5 U.S.C. 551(1). Defendant Interior’s subordinate office OAS coordinates and directs all fleet and contract aircraft for the Secretary of the Department of the Interior and assumes responsi- bility for policy oversight and aviation services. The Department’s bureaus, offices and services are responsible for implementing safety requirements, deciding on whether to use fleet or contract aircraft, and the scheduling and use of their aircraft. 16. Defendant Interior’s rules state that, “[a]lT commercial avia- tion services required by any bureau or office of the Department of the Interior...shall be acquired through the procurement process of the Department’s Office of Aircraft Services (OAS).” OAS ordering procedures specify that contract flight services may only be pro- cured from vendors approved under an Aircraft Rental Agreement (“ARA”) either through the appropriate OAS Flight Coordination Center or directly with an approved vendor. OAS procedures state that an ordering official shall ensure that the vendor and aircraft being considered are on the OAS Source List, including the elec- tronic Source List on the OAS Internet website home page. An ARA is a basic ordering agreement with contracts made upon award of orders under the ARA. (Ex. 1). 17. OAS contracting is subject to federal procurement statues and acquisition regulations. An OAS Contracting Officer (“CO”) is “the appointed Government official with authority to enter into, administer and terminate” the ARA. ARA 7 C 4.1. ARA provision { C 4.1.3 states that “No one but the CO is authorized under any cir- cumstances to: ...Make a final decision on any agreement mater that is subject to the Disputes clause of this agreement... .[and] terminate, 86a for any cause, the Vendor’s right to proceed.” ARA ff C 4.1.3 and C 4.1.4 (emphasis in original). : 18. Plaintiffs’ most recent ARA, 80-ARA-6366, was issued November 13, 2001 effective January 1, 2002, by OAS Contracting Officer Vicki Johnston. According to the ARA: Upon involvement in an Incident with Potential as defined under Mishaps, a pilot performing under this agreement may be suspended from performing pilot duties under this agreement and any other activity authorized under the inter- agency pilot qualification card(s) issued to the pilot pending the incident investigation outcome. ARA 4 C 1.7.3 (emphasis in original). The ARA further pro- vides: C 1.7.4 When the pilot is suspended, and when requested, _ the interagency pilot qualification card(s) will be surren- dered to the COTR or other authorized agency representa- tive. Pilot suspension will continue until: C 1.7.4.1 The investigation findings and decision indi- cate no further suspension is required and the interagency pilot qualification card(s) is returned to the pilot; or C 2.7.4.2. Revocation action to cancel the pilot’s inter- agency DOI pilot authorizations is taken by the issuing agency in accordance with agency procedures. 19. “Aviation hazard” is defined in the ARA as “[a]ny condition, act, or set of circumstances that exposes an individual to unneces- sary risk or harm during aviation operations.” ARA 4 C.10.1.3. OAS’s “aviation hazard” definition is materiaily different from OAS’s “incident with potential” definition. ARA J C 10.1.6 defines “incident-with-potential” as: An incident that narrowly misses being an accident and in which the circumstances indicate significant potential for substantial damage or serious injury. Classification of an incident as an “incident with Potential” is determined by the OAS Aviation Safety Manager (ASM) for DOI users or 87a US. Forest Service (USFS) Aviation Safety Manager for USFS users. 20. Defendant Department of Interior’s Departmental Manuals constitute legislative rulemaking, but were not published in the Fed- eral Register and were not promulgated through notice and com- ment rulemaking as required by 5 U.S.C. § 553. OAS’s Operational Procedural Memoranda constitute legislative rulemaking, but were not published in the Federal Register and were not promulgated through notice and comment rulemaking as required by 5 U.S.C. § 553. Defendants’ ARA suspension procedures constitute legisla- tive rulemaking but were not published in the Federal Register and were not promulgated through notice and comment rulemaking as required by 5 U.S.C. § 553. Defendants’ suspension procedures con- stitute an adjudication within the meaning of 5 U.S.C. § 551(7). 21.The Federal Acquisition Regulations (“FAR”) require that a Contracting Officer exercise discretion before determin- ing a contractor responsible or nonresponsible. FAR Subpart 9.1 (“Responsible Prospective Contractors”). The FAR also requires that determinations of nonresponsibility by a Contracting Officer must be referred to the Small Business Administration (“SBA”) so the SBA can determine whether to issue a certificate of competency. FAR Subpart 19.6 (“Certificates of Competency and Determinations of Eligibility”). 22. The Federal Acquisition Regulations also require that a duly authorized suspension or debarment official exercise discre- tion before suspending or debarring a government contractor. FAR Subpart 9.4. The suspension or debarment official must consider mitigating factors. Suspension or debarment must not be imposed for punishment. 23. The Administrative Procedure Act requires that in any adjudi- cation required to be made on the record the decisionmaker must be neutral and detached. 5 U.S.C. § 556. The Administrative Procedure Act requires that before any license may be denied notice and a hearing must be provided. 5 U.S.C. § 554. 24. Defendant Smith is not a Contracting Officer within the meaning of the Contract Disputes Act of 1978 or the Federal Acqui- sition Regulations (“FAR”). Defendant Smith is not a suspension or 88a debarring official within the meaning of FAR Subpart 9.4. Defen- dant Smith is not a neutral and detached decisionmaker or adjudica- tor within the meaning of 5 U.S.C. § 556. 25. Defendant Galloway is not a Contracting Officer within the meaning of the Contract Disputes Act of 1978 or the Federal Acqui- sition Regulations (“FAR”). Defendant Galloway is not a suspen- sion or debarring official within the meaning of FAR Subpart 9.4. Defendant Galloway is not a neutral and detached decisionmaker or adjudicator within the meaning of 5 U.S.C. § 556. 26. The OAS Contracting Officer has not exercise her discretion to determine Plaintiffs nonresponsible. The OAS contracting Officer has not referred any nonresponsibility determination to the SBA for a certificate of competency. The Defendants duly authorized suspen- sion and debarment official has not exercised his or her discretion to determine whether the alleged misconduct by Plaintiffs is cause for suspension or debarment, whether suspension or debarment is nec- essary to protect the public interest, and whether mitigating factors preclude any suspension or debarment of Plaintiffs. B. Defendants’ Suspension of Plaintiffs 27. By letter dated March 27, 2002 OAS Aviation Safety Manager Galloway demanded that Mr. Arment return to OAS his OAS pilot interagency qualification card (hereinafter “OAS pilot card”). (Ex. 2). Defendant Galloway’s March 27, 2002 letter is an order within the meaning of 5 U.S.C. § 551(6). Defendant Galloway’s May 6, 2003 letter is a sanction within the meaning of 5 U.S.C. § 551(10). Defendant Galloway took Plaintiff Arment’s OAS pilot card without completing any investigation into whether Mr. Arment violated any pilot or aircraft flight regulation. He did so providing Mr. Arment notice only that OAS was investigating an alleged violation of two ARA provisions: ARA ¥ C.10.1.3 (“Aviation Hazard”) and ARA ¥ C 10.1.6 (“Incident-with-Potential”). He did so without providing Mr. Arment an OAS flight check. He also did so without providing Mr. Arment any meaningful opportunity to be heard. 28. Defendant Galloway stated that he was investigating a seri- ous aviation hazard as an incident with potential citing only the ARA suspension provisions as authority for his action. The alleged inci- dent occurred on December 13, 2001 while Mr. Arment was flying a 89a low-level special use operation for the Defendant Interior’s Fish and Wildlife Service (“FWS”) Colorado River Fish Project in Utah and Colorado. Defendant Interior had hired Plaintiffs to locate fish using radio frequencies detecting signals from transmitters embedded in the fish in a river covered with frozen ice. 29. Neither Mr. Arment nor the assigned FWS biologist passen- ger thought what happened on December 13, 2001 was any kind of aircraft incident. OAS did not begin their review of the December 13, 2001 flight until March 2002. 30. Defendant Galloway’s suspension order deprived Plaintiffs of any opportunity to complete their contracts with federal agencies. Defendant Galloway’s suspension order deprived Plaintiffs of any opportunity to obtain future federal agency government contracts. Defendant Galloway’s suspension order prevented Plaintiffs from proceeding under the ARA. 31. By letter dated May 6, 2003 Defendant Smith ratified and continued Defendant Galloway’s indefinite suspension of Plaintiff Arment’s OAS pilot card. (Ex. 3). Defendant Smith stated to Mr. Arment that he had “completed his review of the Incident-with- Potential that occurred during a flight you conducted on December 13, 2001 for the U.S. Fish and Wildlife Service.” He stated his deter- mination to impose sanctions is based on: 1. You willing operated the aircraft at an altitude that resulted in the situation where you were forced to evade power lines and this altitude was not uncommon to the standard profile you had used on previous similar mis- sions. ... 2. You intentionally flew under a set of power lines that are estimated to range between 60 and 165 feet above the ter- rain. In doing so you actually came in contact and made tracks on the frozen river below the wires. ... 3. You attempted to minimize and downplay this event and in fact, based on interviews, told the passenger and the dispatcher that the event was not an “incident.” 90a (Ex. 3 at 1-2). Defendant Smith’s May 6, 2003 letter is an order within the meaning of 5 U.S.C. § 551(6). Defendant Smith’s May 6, 2003 letter is a sanction within the meaning of 5 U.S.C. § 551(10). 32. Defendant Smith’s May 6, 2003 sanctions order relies upon transcripts of government employees and other information fur- nished by OAS not disclosed to Plaintiffs or further identified. Defendant Smith failed to provide Plaintiffs a copy of the one administrative decision he cited, Administrator v. Scollan, 2 NTSB 538 (1973). (Ex. 4). Defendant Smith failed to provide Plaintiffs any kind of hearing. According to Defendant Smith, Plaintiffs’ only recourse is to ask Defendant Smith to reconsider his decision. He refuses to reconsider unless “additional substantive evidence is presented” by Plaintitfs. (Ex. 3 at 3). Defendant Smith, however, refuses to provide Plaintiffs any of the witness statements, any of the investigative report, or the administrative record upon which his determination is based. Defendants have taken the position that Plaintiffs must pay through the Freedom of Information Act for a copy of the administrative record. Defendants have estimated fees of $810 that Plaintiff must agree to pay before the un-described and _____un-categorized documents are furnished to Plaintiffs. (Ex. 5). 33. Defendants Galloway and Smith imposed sanctions against Plaintiffs without following their own safety rules. OAS’s rules provide that: Flight Checks—Post Aircraft Accident or Incident with Potential. Pilots shall take a flight check following an aircraft accident or incident with potential. This requirement can only be waived by the OAS Director. An OAS pilot inspector shall administer the flight check. Department of Interior Departmental Manual 351 DM 3.1E. Plaintiff Arment had passed an OAS routine flight check on June 11, 2001 given by an OAS inspector pilot. Plaintiff Arment passed the FAA Part 135 commercial pilot flight check on March 2, 2002 given by an FAA inspector pilot. 34. In imposing sanctions, Defendant Smith announced to Plain- tiffs that: 9la As a minimum, education and training are required to try and correct these deficiencies. Prior to consideration of any reapplication to fly for the Department of the Interior (DOT) you will be required to provide this office with written veri- fication showing successful completion of formal structure courses in the following subject matter: Review of Code of Federal Regulations Parts 91 and 135. Accident prevention with emphasis in human factors and cockpit resource management. Risk analysis and management. Education that promotes an understanding of human behav- ior and interpersonal relationships with emphasis on the appropriate use of, and response to, authority. All instruction should be from credible sources such as the FAA, Aircraft Owners and Pilots Association (AOPA), aeronautical training centers or universities, or a provider of specialty aviation related courses. In addition, as validation of long-term positive impacts of this education and training and prior to consideration of any future carding by the OAS, you will be required to perform a minimum of 200 hours of incident and accident free flying over a period of at last 12 months. This flying shall be of the type performed in support of DOI special use missions. It is requested that a log of this activity, to include date, cus- tomer, and contact information be maintained as validation of such flying. After completing these requirements you may request a post Incident-with-Potential flight evalua- tion. If successful, you will be issued a letter stating your eligibility for consideration as an OAS approved pilot if an award is made to your company in the future. (Ex. 3 at 2-3). 35. Defendant Smith’s determination not to have Mr. Arment take a flight check following the alleged Incident-with-Potential, but to have Mr. Arment fly a “post Incident-with-Potential flight evaluation” more than two years after the alleged incident, only after receiving prescribed classroom instruction and completing a Le 92a one year 200 flying hours requirement impose conditions irrelevant to the agency’s safety rules. 36. Defendant Smith’s ordered sanctions for Mr. Arment impose conditions for regaining his OAS card that are practically impos- sible. Mr. Arment cannot fly low-level special use type missions for 200 flight hours without having any appreciable income from federal government contracting. 37. The maneuvers Plaintiff Arment performed as a pilot on December 13, 2001 were maneuvers he used successfully and safely as an OAS pilot and Department of Interior employee in Alaska in 1982 - 1992. Mr. Arment relied to his detriment upon Defendants’ representations in Alaska that the maneuvers he performed were lawful and constituted safe flying. 38. Defendants published the suspension of Plaintiffs from OAS interagency flight contracting by excluding Plaintiffs from OAS’s vendor pilot and vendor aircraft lists on OAS’s official website accessible to all using the Internet. 39. Immediate suspension of Mr. Arment’s OAS pilot card was not necessary to protect the public interest. Defendants made no finding or determination that immediate action was necessary to protect the public interest. Defendants imposed the indefinite suspension and de facto debarment of Mr. Arment as punishment. Defendants did not impose the indefinite suspension and de facto debarment of Mr. Arment as in the public interest and for the protec- tion of the federal government. 40. Defendants have no statutory authority for imposing the OAS inter": __y pilot qualification card requirement on Plaintiffs. Defendants i. ‘e no statutory authority for sanctioning Plaintiffs for violations of OAS rules. Defendants indefinite suspension and de facto debarment of Plaintiffs is ultra vires. 41. Defendant Smith’s May 6, 2003 constitutes final agency action. Defendants have reached a definitive position on an issue that causes actual and concrete injury to Plaintiffs. Defendant Department of Interior does not provide any appeal remedy. Defen- dants do not render inoperative the indefinite suspension of Plaintiff Arment’s OAS pilot card and other sanctions imposed against him i 93a pending any kind of inter-agency appeal. Defendants do not render inoperative the indefinite suspension and de facto debarment of Plaintiffs from government contracting pending any kind of inter- agency appeal. C. The Federal Aviation Act 42. The Federal Aviation Administration is the sole federal agency authorized to make public interest determinations and whether sanctions protect the Government in aircraft operations. Congress intended that the FAA regulate navigable airspace. 49 U.S.C. § 40103(b). Congress expressly gave the FAA broad author- ity to grant exemptions from safety regulations, including minimum safe altitudes, “when the Administrator decides the exemption is in the public interest.” 49 U.S.C. § 40109(b). Congress specifically intended and expressed that the federal Courts of Appeals have exclusive jurisdiction over final FAA orders related to airplane com- merce and safety. 49 U.S.C. § 46110(a). By imposing the OAS card requirement and initiating and imposing an indefinite suspension and de facto debarment of Plaintiffs, Defendants have defied Con- gress and deprived Plaintiffs of the authorized judicial review. 43. The Federal Aviation Regulations do not define “aviation haz- ards” as OAS does. The Federal Aviation Regulations explicitly rec- ognize overhead transmission and utility lines “may not be readily visible and the wire may be virtually impossible to see under certain conditions.” FAA Aeronautical Information Manual (“AIM”) § 7-5- 3c. AIM § 7-5-3a states: While 14 CFR 91.119 allows flight below 500 AGL when over sparsely populated areas or open water, such opera- tions are very dangerous. At and below 200 feet AGL there are numerous power lines, antenna towers, etc., that are not marked and lighted as obstructions and; therefore, may not be seen in time to avoid a collision. The Federal Aviation Regulations do not define or discuss “incident- with-potential.” The conduct OAS regards as an “aviation hazard” and “incident-with-potential” is not conduct the FAA even requires reporting much less investigation. See 14 CFR Part 803 & FAA AIM Section 6. OAS did not report the alleged December 13, 2001 inci- dent by Plaintiffs to the FAA. 94a 44. The FAA does not define “Incident-with-Potential” or require reporting of an “Incident-with-Potential.” The FAA defines accident as: a ...an occurrence associated with the operation of an aircraft which takes place between the time ay person boards the aircraft with the intention of flight and all such persons have disembarked, and in which any person suffers death or serious injury, or in which the aircraft receives substantial damage. * * * Substantial damage means damage or failure which adversely affects the structural strength, performance, or flight characteristics of the aircraft, and which would nor- mally required major repair or replacement of the affected component. Engine failure or damage limited to an engine if only one engine fails or is damages, bent fairings or cowl- ing, dented skin, small punctured holes in the skin or fabric, ground damage to rotor or propeller blades, and damage to landing gear, wheels, tires, flaps, engine accessories, brakes or wingtips are not considered “substantial damage’ for the purpose of this part. 14 CFR § 830.2. 45. Under the FAA Federal Aviation Regulations, the pilot-in- command has the sole authority to determine airplane airworthi- ness, safe operations, and whether to declare an emergency while flying. The FAA Federal Aviation Regulations specify that the pilot- in-command has direct responsibility and final authority for an in- flight emergency requiring immediate action and if he deviates from any rule to the extent required to meet that emergency shall upon the request of the FAA Administrator, send a written report of that deviation to the Administrator. 14 CFR § 91.3. 46. Defendants knew that the conduct for which OAS ordered sanctions against Plaintiffs is not conduct sanctionable by the FAA. The 35 day ordered suspension in Administrator v. Scollan, 2 NTSB 538 (1973) involved a pilot striking a utility wire and carelessly piloted his aircraft in such a manner that the utility wires could 95a not be detected in sufficient time to avoid striking them. (Ex. 4). Plaintiff Arment as pilot-in-command safely avoided contacting any utility wire. 47. The FAA Administrator’s authority to suspend or revoke pilot and aircraft certificates may be exercised only by FAA’s “Chief Counsel, the Assistant Chief Counsel for Regulations and Enforce- ment, and the Assistant Chief Counsel for the region or the Aeronau- tical Center.” 14 C.F.R. § 1 p-1X0). 48. Defendants’ inference that Plaintiff Arment is an unsafe pilot because he flew underneath and within 500 feet of a utility line is unreasonable when Defendant Interior hired Mr. Arment to fly low level special use operations chasing fish in a river covered with fro- zen ice. 49. OAS believes it has the authority to impose a pilot licens- ing requirement over and above the FAA certificate issued to all approved pilots. OAS believes that it has the authority to suspend an OAS pilot card without providing any of the rights provided by FAA in suspending or revoking an FAA pilot’s certificate. OAS believes OAS may suspend or revoke an OAS pilot card even if there is no proven violations of FAA aviation regulations. OAS believes OAS may suspend or revoke an OAS pilot card not because the OAS pilot is not qualified to fly low level operations for DOI, but because the OAS pilot did not in the cockpit while flying apply risk analysis and management and demonstrate obedience to authority. 50. OAS expects OAS contract pilots to disregard their experi- ence and qualifications, their instincts and judgment, all gained while flying low level special use operations for the Department of Interior, and while in the cockpit flying apply “understanding[s] of human behavior and interpersonal relationships with emphasis on the appropriate use of, and response to, authority”. 51. Plaintiff Arment is presently entitled to exercise ownership dominion over the OAS pilot card Defendants issued to him as per- sonal property. Plaintiff also has a property interest in pursuing a gainful occupation as an OAS contract pilot. Plaintiffs have a liberty interest in remaining free from the stigma of being labeled unsafe or incompetent. Plaintiffs have property interests in performing, com- pleting, and remaining eligible for government contract awards. 96a COUNT I Violation of the Fifth Amendment of the United States Constitution — Denial of Substantive Due Process 52. Plaintiffs herby incorporate the allegations of paragraphs 1 through 51 as if fully set forth herein. 53. The Fifth Amendment to the United States Constitution guar- antees to Plaintiffs substantive due process of law when federal agency adverse action deprives Plaintiffs of life, liberty or property. 54. Defendants’ indefinite suspension of Plaintiff Arment’s OAS pilot card for conduct not a violation of the FAA Federal Aviation Regulation is not rationally connected with Plaintiff Arment’s fitness or capacity as a pilot. Defendants’ indefinite suspension of Plaintiff Arment’s OAS pilot card for low level flying specifically required by Defendants’ contract with Plaintiffs is not rationally connected with Plaintiff Arment’s fitness or capacity as a pilot. Defendants’ indefinite suspension of Plaintiff Arment for flying within 500 feet of the surface and/or flying within 500 feet of an obstacle on December 13, 2001 is not rationally related to Mr. Arment’s fitness or capacity to track fish in a frozen river piloting an airplane at low levels for Defendants. 55. Defendants’ sanctions against Plaintiffs that include formal classroom instruction and 200 hours low-level fiying over one year before reinstatement of Plaintiff Arment’s OAS pilot card is not rationally connected with insuring pilot or aircraft safety when Defendants previously approved Plaintiff Arment’s flying skills and safety in an OAS flight check on June 11, 2001, refused to test Plaintiff Arment’s flying skills and safety in an OAS flight check after the alleged incident occurring on December 13, 2001, and FAA approved Plaintiff Arment’s flying skills and safety in an FAA flight check on March 29, 2002. 56. Defendants’ determination that Mr. Arment may be excluded from his profession as a low-level flying OAS contract pilot for conduct not rationally related to pilot-in-command judgment, pilot qualifications, pilot experience, pilot safety record, or Plaintiffs record of mission accomplishment violates the constitutional guar- antee of Substantive Due Process. 97a 57. Defendants’ determination that Defendants are not estopped from sanctioning Plaintiffs for conduct OAS approved while Plain- tiff Arment flew low-level flying special use operation flights in Alaska for Defendants violates the constitutional guarantee of Sub- stantive Due Process. Defendants’ determination that Defendants are not estopped from sanctioning Plaintiffs for aircraft maneuvers Defendants trained Plaintiffs to perform while low-level flying special use operation flights. in Alaska for Defendants violates the constitutional guarantee of Substantive Due Process. 58. Defendants’ indefinite suspension of Mr. Arment’s previously issued OAS pilot card infringed upon Mr. Arment’s constitutionally protected liberty interests. Defendants’ indefinite suspension and de facto debarment of Plaintiffs deprived Plaintiffs of their constitu- tionally protected property interests. Defendants’ indefinite suspen- sion of Mr. Arment’s previously issued OAS card infringed upon M: Arment’s constitutionally protected liberty interests. Defen- dants’ sanctions impose a stigma or other disability that foreclosed Plaintiff Arment’s freedom to take advantage of other employment opportunities. Defendants’ indefinite suspension and de facto debar- ment of Plaintiffs deprived Plaintiffs of their constitutionally pro- tected liberty interests. 59. Defendants deprived Plaintiff of substantive due process of law by suspending Mr. Arment’s OAS pilot card. Defendants deprived Plaintiffs of substantive due process of law by indefinitely suspending and de fact debarring Plaintiffs from government contracting. Plain- tiffs relied to their detriment upon Defendants’ representations that low-level flying near the ground surface and obstacles while perform- ing under contracts with Defendants was authorized and safe flying. Defendants denied Plaintiffs substantive due process of law by sanc- tioning Plaintiffs for conduct Defendants represented to Plaintiffs was authorized and constituted safe flying. Defendants denied Plaintiffs substantive due process of law by sanctioning Plaintiffs for conduct specifically approved of by Defendants. COUNT Il Violation of the Fifth Amendment to the United States Constitution — Denial of Procedural Due Process— Inadequate Notice 98a 60. Plaintiffs herby incorporate the allegations of paragraphs 1 through 59 as if fully set forth herein. 61. The Fifth Amendment to the United States Constitution guar- antees to Plaintiffs Procedural Due Process of law when federal agency adverse action deprives Plaintiffs of life, liberty or property. 62. Defendants denied Plaintiff Arment his OAS pilot qualifica- tion card and imposed sanctions upon Plaintiffs without providing Plaintiffs adequate notice. Defendants refused to provide Plaintiffs the administrative record upon which Defendants made their deter- minations. Defendants refused to provide Plaintiffs the investigative report relied upon by Defendants in denying Plaintiff Arment his OAS pilot card and sanctioning Plaintiffs. Defendants refused to provide Plaintiffs witness statements and other information relied upon by Defendants in denying Plaintiff Arment his OAS pilot card and imposing sanctions upon Plaintiffs 63. Defendants refusal to provide Plaintiffs adequate notice deprives Plaintiffs of their protected property interests in violation of the Procedural Due Process Clause of the Fifth Amendment. 64. Defendants refusal to provide Plaintiffs adequate notice deprives Plaintiffs of their protected liberty interests in violation of the Procedural Due Process Clause of the Fifth Amendment. COUNT III Violation of the Fifth Amendment to the United States Constitution — Denial of Procedural Due Process — No Hearing 65. Plaintiffs herby incorporate the allegations of paragraphs 1 through 64 as if fully set forth herein. 66. Defendants refused to provide Plaintiffs a hearing when denying Plaintiff Arment his OAS pilot card and imposing sanc- tions against Plaintiffs. Defendants refused to provide Plaintiffs any meaningful opportunity to respond when denying Plaintiff Arment his OAS pilot card and imposing sanctions against Plaintiffs. Defen- dants refused to provide Plaintiffs a hearing when suspending Plain- tiffs from government contracting. 99a Defendants refused to provide Plaintiffs any meaningful oppor- tunity to respond when suspending Plaintiffs from government contracting. 67. Defendants refusal to provide Plaintiffs a hearing and any meaningful opportunity to respond deprives Plaintiffs of their pro- tected property interests in violation of the Procedural Due Process Clause of the Fifth Amendment. 68. Defendants refusal to provide Plaintiffs a hearing and any meaningful opportunity to respond deprives Plaintiffs of their pro- tected liberty interests in violation of the Procedural: Due Process Clause of the Fifth Amendment. COUNT IV Violation of the Fifth Amendment to the United States Constitution — Denial of Procedural Due Process — No Neutral and Detached Decisionmaker 69. Plaintiffs herby incorporate the allegations of paragraphs 1 through 68 as if fuily set forth herein. 70. The Fifth Amendment’s Procedural Due Process Clause guar- antees Plaintiffs that administrative proceedings which adjudicate their interests in life, liberty, or property be free from bias. Defen- dants provided Plaintiffs no pre-deprivation hearing. Defendants Galloway and Smith presided at subsequent stages in Defendants’ administrative procedure suspending Plaintiff Arment’s OAS pilot card and excluding Plaintiffs from federal contracting. 71. Defendant Galloway prejudged the sanctions outcome by tak- ing Plaintiff Arment’s OAS pilot card before completing his inves- tigation. Defendant Galloway prejudged the sanctions outcome against Plaintiffs by taking Plaintiff Arment’s OAS pilot card for an “aviation hazard” not authorized as grounds for suspension under the OAS ARA. Defendant Galloway’s prejudgments about the sanc- tions outcome against Plaintiffs constitute unlawful bias. 72. Defendant Smith’s 11 month delay in making his determina- tions dated May 6, 2003 without providing Plaintiffs due process of law constitutes unlawful bias against Plaintiffs. Defendant Smith’s citation to Administrator v. Scollan, 2 NTSB 538 (1973) (Ex. 4) 100a that specifically provides for FAA notice and hearing on the record before an administrative law judge imposes any suspension of a pilot’s FAA certificate shows he knew he was violating Plaintiffs constitutional rights. Defendant Smith’s refusal to furnish Plaintiffs a copy of the administrative record, including the investigative report, witness statements, and other OAS information other than through the Freedom of Information Act with Plaintiffs first agree- ing to pay $810 was unreasonable and unlawful. Defendant Smith’s requirement that Plaintiffs’ only administrative remedy is to ask him to reconsider providing Plaintiffs provide additional substantive evidence without disclosing Defendants’ administrative record to Plaintiffs is unreasonable and unlawful. Defendant Smith’s impo- sition of sanction conditions that Plaintiffs cannot perform or can perform only at unreasonable cost with protracted delay is unrea- sonable and unlawful. Defendant Smith’s conduct was impermis- sibly biased against Plaintiffs. 73. Defendants’ failure to provide Plaintiffs a neutral and detached decisionmaker deprives Plaintiffs of their protected liberty interests in violation of the Procedural Due Process Clause of the Fifth Amendment. 74. Defendants’ failure to provide Plaintiffs a neutral and detached decisionmaker deprives Plaintiffs of their protected prop- erty interests in violation of the Procedural Due Process Clause of the Fifth Amendment. COUNT V Violation of the Fifth Amendment to the United States Constitution— Due Process— Imposition of Sanctions for Violations of Rules Vague on their Face and as Applied to Plaintiffs 75. Plaintiffs herby incorporate the allegations of paragraphs 1 through 74 as if fully set forth herein. 76. Facially and as applied to Plaintiffs, Defendants’ imposition of sanctions based on Defendants’ rules violate the void-for-vague- ness doctrine of the Due Process Clause of the Fifth Amendment to the United States Constitution. 10la 77. Defendants’ rule that “(t]he pilot shall refuse any flight or landing which is considered hazardous or unsafe” if flying under 200 feet on an authorized low-level flight not knowing the exact location and height of every possible obstacle when such opera- tions are very dangerous because at and below 200 feet AGL there are numerous power lines, and antenna towers that are not marked and lighted as obstructions and therefore may not be seen in time to avoid a collision is facially vague. 78. Defendants imposed sanctions against Plaintiffs for flying closer than 500 feet to a power line while flying a low-level special operations fish tracking flight pursuant to a contract with Defendants that allows flying within 500 feet horizontally from an obstacle. Imposing sanctions against Plaintiffs for safely avoiding the inexact location of a power line hazard while flying an authorized low-level flight violates the void-for-vagueness doctrine. 79. Defendants’ rule that safely avoiding an inexact location of a power line hazard within 500 feet as pilot-in-command flying an authorized low-level flight violates FAA Federal Aviation Regula- tion § 91.119(c) when excepting Plaintiff Arment from FAA Federal Aviation Regulation § 135.203’s requirement to not fly within 500 feet horizontally from any obstacle is facially vague. 80. Defendants’ rule that: within 5 days of an event, .. to submit to the OAS/USFS ASM a “SAFECOM” to report any condition, observance, act, maintenance problem, or circumstance which has the potential to cause an aviation-related mishap. is facially vague. Defendants define “mishap” as “aircraft accidents, incidents with potential, aircraft incidents, aviation hazards and aircraft maintenance deficiencies.” Defendants’ definition of “mis- hap” is facially vague. Defendants define “aviation hazard” as “any condition, act or set of circumstances that exposes an individual to unnecessary risk or harm during aviation operations.” Defendants’ definition of “aviation hazard” is facially vague. Defendants’ define “incident with potential” as “an incident that narrowly misses being an accident and in which the circumstances indicate significant potential for substantial damage or serious injury.” Defendants’ definition of “incident with potential” is facially vague. 102a 81. Defendants imposed sanctions against Plaintiffs for flying at and below 200 feet from ground surface where there are numer- ous power lines, and antenna towers, hazards that are not marked and lighted and are not always readily visible with the wires being virtually impossible to see under certain conditions. Defendants’ imposition of sanctions against Plaintiffs for failing to report safely detecting and avoiding a power line hazard less than 200 feet from the ground and in time to avoid a collision while flying an autho- rized low-level special operations fish tracking flight pursuant to a contract with Defendants violates the void-for-vagueness doctrine. COUNT VI Violation of the Fifth Amendment to the United States Constitution — Unauthorized Taking Without Just Compensation 82. Plaintiffs herby incorporate the allegations of paragraphs | through 81 as if fully set forth herein. 83. Defendants’ suspension of Plaintiff Arment’s OAS pilot card constitutes a taking of property under the Takings Clause of the Fifth Amendment to the United States Constitution. 84. Defendants’ suspension of Plaintiffs from federal govern- ment contracting constitutes a taking of property under the Takings Clause of the Fifth Amendment to the United States Constitution. 85. Justice and fairness require that economic injuries suffered by Plaintiffs caused by Defendants’ actions must be deemed a com- pensable taking of Plaintiffs’ property. Plaintiffs’ expectation that their investment in low-level special use operations flying skills and aircraft to maintain eligibility and competitiveness for awards of federal contracts is reasonable. 86. Defendants taking Plaintiff Arment’s OAS pilot card was unauthorized conduct and ui/tra vires agency action. D [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1274%3A1. Public record. Not legal advice.