Petition for Writ of Certiorari — TPI International Airways, Inc. v. Widnall

>

Court, U.S. :

FILED

98 147 JUN25 1998

NO. OFFICE OF THE CLERK

‘

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1998

TPI INTERNATIONAL AIRWAYS, INC.,

Petitioner,

vs.

SECRETARY OF THE AIR FORCE,

Respondent.

Petition For Writ Of Certiorari

To The United States Court of Appeals

For The Federal Circuit

PETITION FOR WRIT OF CERTIORARI

Alan David Tucker, Esq.

Attorney for Petitioner

Counsel of Record

9 St. Andrews Court, Suite 201

P.O. Box 1332

Brunswick, Georgia 31521

912-267-7123

gine:

THE QUESTION PRESENTED FOR REVIEW

Is the U.S. Air Force required to

follow its own security regulation(s) to

Protect from, and investigate cases of,

sabotage and suspected sabotage of civil

airline aircraft given the following

facts:

a. The aircraft were on Tinker Air

Force Base, Oklahoma, when the events

occurred.

b. The aircraft were under exclusive

contract to the Air Force for military

transportation purposes.

€: aa CFR. 855 .6(b)(1) specifically

states that the Government has liability

responsibility for all damages or injury

associated with the operations of civil

contract aircraft on military airfields.

d. 32 C.F.R. 809a.1(a) makes Air Force

installation commanders responsible for

protecting personnel and property under

their jurisdiction.

he

PARTY AND CORPORATE INFORMATION

The parties are all identified in

the caption of the case.

There is no parent or’ subsidiary

company to TPI International Airways,

Inc.

il

TABLE OF CONTENTS

Page

THE QUESTION PRESENTED FOR REVIEW .. i

PARTY AND CORPORATE INFORMATION .... ii

TABLE OF CONTENTS ...-.-- 222-2 eee ees iii

TABLE OF AUTHORITIES «.....----++-+-=- iv

CITATION TO THE OPINION BELOW ...... 1

BASIS FOR JURISDICTION .....----+-+-- 1

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS) ...------- 2222 eee 2

STATEMENT OF THE GASE ....----+-++s=- 5

ARGUEMENT FOR ALLOWING THE WRIT ...-.- 8

CONCLUSION) ..n ccc ccc cere cen reeecees 14

SIGNATURE OF COUNSEL ....----+--++--+-> 15

APPENDIX = cncccscccvsscccseseceeses 16

ORDER OF THE COURT OF APPEALS

DENYING REHEARING .....---- +22 eee eee A-1

THE JUDGEMENT TO BE REVIEWED ......-- A-3

iii

TABLE OF AUTHORITIES

(CASES, STATUTES, AND REGULATIONS )

CASES: Pages

G.L. Christian and Associates v.

United States, 320 F2d 345,

OY Gk i ED oc a ak kw ewes 3, id

Union of Concerned Scientists v.

Atomic Energy Commission,

499 F2d 1069, 1082

(OS eae. Ree o os awn meee ewes 10

Way of Life Television Network,

Inc. v. Federal Communications

Commission, 593 F2d 1356, 1359,

(0 © Ble ce Ri oa oa ee es 10

STATUTES:

Constitution, Art. 2, Section 2 . 2

20 U9 ORE oo os ee erate ee |

10 U.S.0 DOOR OA SS ches chess se Se 7

ye ee eS ee ee ee 1

20° USC. TREO AG) ok Soe. 5

82: 03.6.0. GOTERRS) vibe veires 5S

92 C.F OR BOC. ACR) ncn css t. 8.33

a2: C.F RR. OSE BCR K1 Do ceca Pe Sek i

REGULATIONS

AFR 205-57 (28 Apr 1987)..... So. Ss 4s ae

CITATION TO OPINION BELOW

The decision of the U.S. Court of

Appeals for the Federal Circuit is unre-

ported, however, a copy of the order

denying the petition for rehearing and

suggestion for rehearing en banc is

attached as Appendix A-1, A-2.

The opinion of Judge Allan F. Elmore

of the Armed Services Board of Contract

Appeals is attached as Appendix A-3 to 7.

BASIS FOR SUPREME COURT JURISDICTION

The jurisdiction of this Court is

invoked ctu to 28 U.S.C. 1254(1).

The judgement of the U.S. Court of

Appeals was dated January 13, 1998. The

order of the Court of Appeals that denied

the petition for rehearing is dated April

3, 1998. This petition is timely filed

within 90 days thereafter.

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS

Constitution Article II, Section 2

which reads “The President shall be the

Commander in Chief (of the military)”.

10 U.S.C. 8061 provides “The Presi-

dent may prescribe regulations for the

government of the Air Force".

10 U.S.C. 8062(d)(3) states that

"The Air Force consists of all Air Force

Units and ... supporting and... logis-

tic elements".

32 C.F.R. 855.6(b)(1) states (with

respect to use of Air Force airfields):

Aircraft exempt from the requirement for

a civil aircraft landing permit

(include) ... any civil aircraft under

lease or contractual agreement for

2xclusive US Government use on a long-

term basis and operated on official

business by or for a US Government

agency ..." » This regulation also

states: “The Government must hold

liability responsibility for all damages

or injury associated with tne operation

of the aircraft".

32 C.F.R. 809a.i1(a) states: “Air

Force installation commanders are re-

sponsible for protecting personnel and

property under their jurisdictions and

for maintaining order on installations,

to insure the uninterrupted and success~

ful accomplishment of the Air Force

mission".

Air Force Regulation (AFR) 205-57

(28 April 1987) states: “This regulation

requires Air Force members to report

immediately any suspicion, incident, or

situation that has to do with ... sabo-

tage ... aimed at, or affecting, the Air

Force or the national security". AFR

205-57, par. 3, states “The Air Force

Office of Special Investigations (AFOSI )

is charged ... to identify and counter

sabotage”. AFR 205-57 Section C, par.

3

16 states: “Each Air Force member or

employee who has information (on

sabotage) must give it directly to the

unit commander or nearest AFOSI office".

AFR 205-57 par.18(c) states: “AFOSI will

investigate the matter to determine all

information needed to protect the Air

Force. If the report concerns a matter

not within the investigative jurisdic-

tion of the Air Force, AFOSI will refer

it to the proper agency".

STATEMENT OF THE CASE

The basis for federal jurisdiction

in the U.S. Court of Appeals was 28

U.S.C. 1298 (a)(10). The case was 4

contract dispute heard by the Armed

Services Board of Contract Appeals under

41 U.S.C. 607(g 1).

TPI International Airways, Inc.,

contracted with the Air Force to provide

four engine L-188 cargo aircraft for the

exclusive use of the Air Force during

1989-1990. TPI had difficulty in meeting

the flight schedule due to maintenance

requirements. TPI determined that the

problems were due to sabotage occurring

while the airplanes were on Tinker Air

Force Base.

TPI obtained the advice of a former

Air Force Office of Special Investiga-

tions officer who had many years of

experience with sabotage. Colonel

Petruskie testified before the ASBCA

5

that the events that TPI had experienced

were clearly the results of sabotage.

The Air Force claimed that TPI’s

problems were simply evidence of sloppy

maintenance. The Air Force did not

counter the testimony of Colonel

Petruskie with any sabotage expert

testimony. TPI was not able to obtain

any response from the Air Force to

investigate the suspected sabotage

during the period of the contract. The

Air Force terminated the TPI contract

because of TPI’s inability to meet

schedule requirements.

TPI entered bankruptcy and pursued

its dispute with the Air Force contend-

ing that its aircraft had been sabotaged

and that the Air Force had failed to

follow its own regulation to investigate

the suspected sabotage that had been re-

ported to Air Force contract officials.

The Air Force did not deny that it had

6

failed to follow its own security regu-

lations and AFR 205-57 in particular.

The failure of the USAF to follow its

security regulation denied TPI both the

protection and the expertise to

determine the culprit.

The Armed Services Board of Contract

Appeals, with respect to the Air Force’s

failure to follow its own security regu-

lation (AFR 205-57), stated that “The

law is settled that where regulations

were promulgated for the benefit of the

government, the contractor can not

complain that the regulations were not

complied with". The ASBCA also said

that TPI’s claim of sabotage “fails for

lack of proof". TPI believes that the

regulations and the law requires the Air

Force to provide investigation to prove

or disprove the sabotage, by experts in

sabotage, and to protect and defend TPI

from such hazards on military airfields.

7

ARGUEMENT FOR ALLOWING THE WRIT

The ASBCA has established, and the

U.S. Court of Appeals has allowed, a

precedent for cases before Boards of

Contract Appeals that raises an impor-

tant question with respect to national

security. This important question of

federal law has not been, but should be,

settled by the Supreme Court. The pre-

cedent that now Stands is that a

contractor serving the armed services

can not complain if the government does

not follow its own security regulations

when that contractor reports suspicions

of sabotage that affect the contractor

and, consequently, the military

operations being served.

The net effect of the ASBCA/Court

of Appeals position is that there are

two standards applied to the protection

of military assets. The term “military

assets" includes military personnel,

8

I ES Se

materials and secrets. Air Force members

need not follow security regulations to

protect a service contractor who can not

complain that the regulations were not

complied with. The decision unwisely

assigns lower-class status to those

personnel, materials, and secrets which

rely on contractor operations.

Failure to give equal security, to

government owned operations and con-

tractor operations alike, is militarily

inexcusable. The result of a rule that

denies the necessity for equal security

status to both contract and military

owned operations could substantially

impair military responsiveness and

national readiness. It certainly offers

a less secure type of service to

military personnel who must depend on

contract operators for air cargo and

troop transport movements.

G.L. Christian and Associates v.

9

United States, 320 F2d 345, Ct.cl.,

(1963) establishes the premise that the

authorized regulations of a government

agency can impose mandatory contractual

provisions on federal officials. This

case also tells us that where the regu-

lations of an agency are reasonably

adapted to the administration of

congressional intent, they have the

force and effect of law. Agency regula-

tions are entitled to great deference.

On its way to a decision an agency must

follow its own regulations: “it is a

well-settled rule that an agency’s

failure to follow its own regulations is

fatal to the deviant action” Way of Life

Television Network, Inc. v. Federal

Communications Commission, 593 F2d 1356,

1359 (0.C.Cir., 1979) (Quoting Union f

Concerned Scientists v. Atomic Energy

Commission, 499 F2d 1069, 1082 (D0.C.Cir.

1974)).

10

The application of security regula-

tions for military contractors, equal to

that which the USAF gives to government

owned operations. seems to Petitioner

TPI International Airways, Inc., to

be mandated by existing laws and

regulations at least as far as an air-

line operation is concerned. 20. .U.S.C.

8061 provides that the President may

prescribe regulations for the government

of the Air Force. 10 U.S.C. 8062(d)(3)

states that the Air Force consists of

all Air Force units with supporting and

logistical elements which would appear

to include contractor operations. 32

C.F.R. 855.6(b)(1) exempts civil air-

craft contracted to thie Air Force from a

landing permit. That regulation spe-

cifically notes that the government has

liability responsibility for all damages

or injury associated with the operations

of such aircraft. 32 C.F.R. 809a.1 makes

11

Air Force installation commanders res-

ponsible for protecting personnel and

property under their jurisdictions and

for maintaining order on installations

to insure the uninterrupted and success-

ful accomplishment of the Air Force

mission. Air Force Regulation 205-57,

Security, requires the immediate report-

ing of any suspicion, incident’ or

Situation involving sabotage aimed at or

affecting the Air Force.

Air Force Regulation 205-57 does not

distinguish between contractor and

government resources in its require-

ments. ANY security (sabotage) incident

AFFECTING the Air Force is REQUIRED to

be REPORTED and INVESTIGATED. TPI does

not see how any other application of the

regulation would further the Congres-

sional intent of national defense.

The present law is defined by the

Armed Services Board of Contract Appeals

12

as follows:

“The law is settled that where

regulations were promulgated for the

benefit of the Government, the con-

tractor can not complain that the

regulations were not complied with".

A proper rule of law would

recognize that: (1) Sabotage, or

suspicion of sabotage, occurring on a

military installation is always an un-

acceptable threat to the security of the

United States. (2) It is a breach of

duty when the military neglects,

refuses, or fails to follow, its own

regulations that would protect a con-

tractor or invitee on an exclusively

controlled military facility where

security and investigative services are

available only from and/or with the

approval of the military.

13

CONCLUSION

For the reasons herein, it is res-

pectfully requested that a Writ of

Certiorari issue to review the matter

set forth to establish a rule of law

that will require protection of civil

aircraft at the same level as Air Force

regulations provide for government owned

aircraft performing equivalent service.

Alternatively stated: That the Air Force

must provide contract aircraft, on USAF

airfields, the protection defined for

USAF aircraft by the Air Force’s own

security regulation(s) and that the air-

line may expect such protection as a

part of the contractual obligation of

the military service to the contractor.

The military personnel of this nation

deserve no less than such a rule of law

in an era when contract operations are a

substantial means for the _ process of

national defense.

14

SIGNATURE OF COUNSEL

Dated: 25 JUNE 1998

RESPECTFULLY SUBMITTED,

j li -

ALAN DAVID TUCKER <5 oo

Attorney for the Petitioner

and Counsel of Record for:

TPI INTERNATIONAL AIRWAYS, INC.

9 St. Andrews Court, Suite 201

P.O. Box 1332

Brunswick, Georgia 31521

912-267-7123

15

APPENDIX

CONTENTS OF APPENDIX:

ORDER OF THE COURT OF APPEALS

PEINY AUG FRR PUROWCRIe kiko ek ee eb 0 6 4468 A-1

16

A-1

United States Court of Appeals

for the Federal Circuit

ORDER

A combined petition for rehearing

and suggestion for rehearing in banc

having been filed by the APPELLANT, and

the petition for rehearing having been

referred to the panel that heard the

appeal, and thereafter the suggestion

for rehearing in banc having been re-

ferred to the circuit judges who are in

regular active service,

UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for re-

hearing be, and the same _ hereby’ is,

DENIED and it is further

ORDERED that the suggestion for re-

hearing in banc be, and the same hereby

is, DECLINED.

The mandate of the court will issue

on April 10, 1998.

FOR THE COURT

JAN HORBALY, CLERK

Dated: April 3, 1998

by S/Alex Van Veen

Alex Van Veen

Staff Law Clerk

cc: JEAN FRANCES NIVEN

PETER LEVITT

FILED

U.S.Court of Appeals for

The Federal Circuit

APR - 3 1998

JAN HORBALY

Clerk

TPI INTERNATIONAL V AIR FORCE, 97-1192

( BCA-46462 )

OK KKK KKK OK KOK KOKOKOK KKK KOK OK KOK KOK KOK OK KKK KK KK KK KK

Note: Pursuant to Fed.Cir.R. 47.6, this

order is not citable as precedent. It is

a public record.

xx KKK KKK KKK KK KKK KK KKK KKK KKK KK KE KKK KKK KK

A-3

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --

TPI International

Airways, Inc.

ed

ASBCA No. 46462

Under Contract No.

F11626-90-D-0031

ee al

APPEARANCES FOR THE APPELLANT:

Alan David Tucker, Esq.

Brunswick, GA.

Jean Niven, Esq.

Tampa. FL.

APPEARANCES FOR THE GOVERNMENT:

COL. Michael J. Hoover, USAF

Chief Trial Attorney

Edwin R. Babbitt, Esq.

Trial Attorney

MAJ James A. Blackwell ,III,Esq.-

Trial Attorney

Scott Air Force Base

Belleville, Itt

OPINION BY ADMINISTRATIVE JUDGE ELMORE

ON APPELLANT’S MOTION FOR

RECONSIDERATION

TPI International Airways , Inc.

(TPI or appellant) has filed a motion

for reconsideration of the Board’s 7

June 1996 decision denying TPI’s appeal

from its default termination (TPI Inter~

national Airways, Inc., ASBCA No. 46462,

96-2 BCA p28,373). The Government has

filed a reply in opposition and TPI has

filed a response to the Government’s

reply. Familiarity with the Board’s

decision is presumed.

A-4

TPI contends that the Board’s

finding 50 should be adjusted to reflect

the fact that TPI reported suspicions of

sabotage and the Government did not

follow the reporting requirements stated

in Air Force regulation 205-57. TPI

further contends that finding 27 is in

error in as much as’ witnesses and doc-

uments prove that engine oil was intro-

duced into TPI’s aircrafts’ hydraulic

systems.

TPI had the burden of proving that

the Government’s failure to follow its

regulations caused the default. This TPI

failed to do. We have been unable to

find, and TPI has not cited evidence

which shows there was a connection

between the Government’s failure to

follow its regulations and the default.

The law is settled that where

regulations were promulgated for the

benefit of the government, the

contractor can not complain that the

regulations were not complied with.

Technical Services Corporation, ASBCA

Nos. 36505 et al., 93-1 BCA p.25,310 at

126,095, citing Hartford Accident &

Indemnity Co. v. United States, 130

ct. Cl. 490 (1955); George Bernadot

Company, ASBCA No. 42943, 94-3 BCA

pP.27242 at 135,743.

The basis for TPI’s contention that

engine oil was introduced into

aircrafts’ hydraulic systems was the

analysis reports issued by Lab One, Inc.

The witnesses who testified that engine

oil was found in the hydraulic oil

systems also were relying on Lab One’s

reports. At finding 28 we determined

that Lab One’s analysis reports were un-

A-5

reliable. At finding 40 we determined

that TPI admitted that its poor

performance, in part, was due to “lack

of experienced maintenance personnel at

Tinker to troubleshoot problems with

engines, gearboxes and props."

TPI’s contentions regarding

findings 50 and 27 are without merit.

TPI contends the Board’s de novo

review of the facts deprives it of its

right to due process. We find this

contention specious at best. TPI was

given its day in court before a tribunal

competent to pass upon the subject

matter and accordingly, TPI was given

due process. Black’s Law Dictionary 449,

(Sth Ed. 1979). TPI has neither provided

support for the contention that de novo

review deprives a contractor of due

process nor has it cited support for the

implied contention that the long string

of cases which hold that’ the Board’s

review was de novo was wrong.*** TPI’s

contention is not supported by the law

and accordingly is without merit.

TPI’s contention that the

termination for default was improper

because the requirements of the default

clause that required the Government to

“a. give written notice of the default

(FAR 52.249-8(a)(1); b. provide ten or

more days to cure the failure (FAR

52 .249-8(a)(2)); c. specify the failure

to be cured (FAR 52-249-8(a)(2))" were

not followed is without merit. After 29

August 1990 TPI could not participate in

the DOD Air Transportation Program

(finding 44) and was unable to provide

aircraft to perform delivery services

A-6

(finding 47). FAR 49.402-3, procedure

for default, subparagraph (c), does not

require a show cause notice if the

default is based upon the contractor’s

failure to perform. Precision Standard,

Inc., ASBCA Nos. 41375, 44257, 96-2 BCA

P.28,461 at 142,155.

The remaining arguements made by

TPI in its motion for reconsideration

were fully considered by the Board in

reaching its original decision and no

new evidence or arguements have been

raised which would cause us to conclude

that our original decision was in error.

After careful review and consideration

of TPI’s motion, the record, and our

original decision, we are pursuaded the

decision was not in error. Accordingly,

our original decision is affirmed.

Dated: 10 October 1996

S/Allan F. Elmore

ALLAN F. ELMORE

Administrative Judge

Armed Services Board

of Contract Appeals

I concur

S/Mark N. Stempler

MARK N. STEMPLER

Administrative Judge

Vice Chairman

Armed Services Board

of Contract Appeals

I concur

S/Alan M. Spector

ALAN M. SPECTOR

Administrative Judge

Acting Chairman

A-7

Armed Services Board

of Contract Appeals

I certify that the foregoing is a

true copy of the Opinion and Decision of

the Armed Services Board of Contract

Appeals in ASBCA No. 46462, Appeal of

TPI International Airways, inc...

rendered in conformance with the Board’s

Charter.

Dated: 15 OCT 1996

S/Edward S$. Adamkewicz

EDWARD S. ADAMKEWICZ

Recorder, Armed Services

Board of Contract Appeals

xxx The Board finds that TPI’s reliance

on NLRB v. Tennsco Corp., 339 F2d

396 (6th Cir. 1964), in support of

its arguement that its was denied

due process is not on point since

it deals with discrimination and

does not address due process.