Appendix — Frye v. Slater

? -\_ Supreme Court, U.S

(2) FILED

sie 99182 Omay1 0 200

IN THE Vas doe Ur THE CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

TIMOTHY P. FRYE, Petitioner,

Vv.

FREDERICO PENA, Secretary,

Department of Transportation

LINDA H. DASCHLE, Acting Administrato

Federal Aviation Administration,

NICHOLAS G. GARAUFIS, Chief Counsel,

Federal Aviation Administration,

LORETTA E. ALKALAY, Asst. Chief Counse

Eastern Region, Federal Aviation

Administration

NATIONAL TRANSPORTATION SAFETY BOARD,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APPENDIX TO ACCOMPANY THE PETITION

LAWRENCE B. SMITH

3938 E. GRANT RD., #142

TUCSON, ARIZONA 85712

520/326-0283

Counsel for Petitioner

May 2000

- 4 2 rib eG EE

APPENDIX

TABLE OF CONTENTS

9™ Cir. Memorandum Opinion (10/02/99) .........::c:c:0:000 A-1

9" Cir. Order Denying Rehearing (01/12/00)..............00+. A-3

Dist. Ct. Rule 11 Sanction Order (10/02/97)...............00.. A-4

Dist. Ct. Dismissal Order (04/20/97) ........c::cccccesceeeseeeees A-25

Dist. Ct. Order staying discovery

and imposing $20,000 bond (02/21/97) ...........:.c:088. A-39

Complaint, Frye v. Pena (01/06/97) .......eceeceeeeesteeteeeneee A-43

RULES & STATUTES

Pea AW ciahigshacncntitsesnisnlaialbacrnedd anscctoharncitcescxds A-49

a aN TN hii: Aiesdinssaveninisististeiscknaeuinsbdanssakitabiebens A-51

PR, FR, PD Wii vcidadeastidscidicaitsintssinicbnetnraias A-52

PEE iis titatieniblaatinchitdnd esa hshabictipbappbthenadodapiicuabducciekic A-52

SI ass sinccicdinsiaintiagancdasciaintedencabicciias A-52

Ue sidabicladephbiaienseeseseabaiuisnsstadinrddaabickancciieslcnssuniiets A-53

OD Ie OD sniatudlnicat ceca vaiadasiosuidi lca Adenia cana A-54

I SI ike sa iusidscopnilagicots aabcecashabinndtndiaaicisbasisdccieiéndbiacdaian A-55

Be Ment Ae TEE Wiksichibs thd nschpehiasoseishconitutennnciizdalontipiioaneiés A-55

Federal Aviation Act of 1958

NIN ve iicak dis cebicscabuss dcenaiibskusssielunddasciaciiabieadveneebes A-56

By NE RU MAE a picnics careiatanensnkansibsccssebindcaiuisininanidenn A-57

I a ade A-57

EXHIBITS

Defendants’ memorandum in support of

SE iii esa tipiteiacticiasiccescipasenrciaimpisidiaeics A-57

Counsel’s letter to Judge Billy ...............c..cccccscssscessssessee A-75

Content list for Marsh exhibits ..............cc.c.cccsscscssosssesee A-79

Lawrence Smith, published aviation articles .................. A-83

ie

LBS FAA cases tried-familiar with .................cccccccccee A-84

(1967) Jennings Rodert mremy 00 LBS ........:cccceecccseees A-85

(1970) Washington Monthly letter ............ccccccceeeeceeeceeeees A-87

(1970) Fund for Investigative Journalism letter .............. A-87

(1970) Washington Post re LBS FOIA suit .................... A-88

(1979) Air Transport Ass’n letter ............cccccccceeeeseeeesseees A-89

(1980) U.S. GAO Memo to FAA Chief Counsel ............ A-90

(1980) Rep. Barry Goldwater, Jr. .........:ccccscscscssssssseseseees A-96

(1983) Frank Kingston Santthh ...........c....ccccssccscssssssesseesees A-97

(1990) J. Scott Hamilton, Esq., letter .0.........::ccceeeeseeeees A-98

kaekktk

-ii-

FILED OCTOBER 22, 1999

NOT FOR PUBLICATION!

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 97-17344

D.C. No. CV-97-00010-RMB

TIMOTHY FRYE, Plaintiff-A ppellant,

V.

FEDERICO PENA, Secretary, Department

of Transportation: et al.,

Defendants-Appellees.

MEMORANDUM

Appeal from the United States District Court

for the District of Arizona

Richard M. Bilby, Chief District J udge, Presiding

Argued and Submitted September 16, 1999

Pasadena, California

[Page 2] Before: B. FLETCHER and PREGERSON, Circuit

Judges, and WEINER, District Judge.’

Attorney Lawrence Smith appeals the district court's order

1 This disposition is not appropriate for publication and may not be cited

to or by the courts of this circuit €xcept as may be provided by Ninth

Circuit Rule 36-3.

2 The Honorable Charles R. Weiner, Senior United States District J udge

for the Eastern District of Pennsylvania, sitting by designation.

A-]

sanctioning him for filing a frivolous lawsuit and for violating

the district court's order restraining him from filing similar

lawsuits without prior court permission.

As attorney for Timothy Frye, Smith filed a complaint

challenging the Department of Transportation's authority to

suspend Frye's pilot certificate. The complaint also alleged that

the Federal Aviation Administration's ("FAA's") administrative

proceedings violated Frye's Fifth Amendment due process

rights, and that the FAA violated the Administrative Procedures

Act by failing to publish its policies regarding license penalties.

Smith had previously filed numerous actions raising the same

contentions. The actions had been uniformly rejected.

The district court granted defendants’ motion to dismiss

citing several Ninth Circuit cases where Smith had personally

raised the same frivolous claims. See Foster v. Skinner, 70 F.3d

1084, 1088 (9th Cir. 1994) ("[The Ninth Circuit has held] that

the FAA has authority to select and impose sanctions on

certificate holders, and that FAA regulations were properly

adopted and are constitutional.")

[Page 3] The district court held a hearing on its order to

show cause as to why Smith should not be disbarred from

practicing in the District Court of Arizona and should not be

- sanctioned for violating Federal Rule of Civil Procedure | 1, 28

U.S.C.§ 1927 and Arizona Ethical Rules 3.1 and 3.3(a)(1). The

district court found that Smith: (1) had filed a frivolous lawsuit

in bad faith and for the sole purpose of harassing defendants;

(2) had made intentional misstatements designed to mislead the

court; (3) had disobeyed the court's prior injunction precluding

him from filing similar lawsuits; and, (4) given the opportunity

to dismiss the case, had refused to do so, thereby needlessly

multiplying the proceedings. |

The district court then ordered Smith: ( 1 ) disbarred from

the practice of law in the federal courts of the District of

Arizona; (2) to pay defendants reasonable attorneys' fees in the

amount of $34,117.68 and travel costs in the amount of

$578.51; and (3) to forfeit to defendants as partial payment for

assessed fees and costs a $20,000.00 bond the court had ordered

A-2

Smith to post as a condition precedent to the court's granting

discovery in this case. Smith and Frye appeal.

We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

We agree with the district court's careful, thorough, and

painstaking analysis of the issues presented in this case. The

district court's reasoning amply demonstrates that Smith

brought and pressed frivolous claims, made personal [Page 4]

attacks on various government officials in bad faith and for the

purpose of harassment, and demonstrated a lack of candor to,

and contempt for, the court. The district court was well within

its discretion in imposing monetary sanctions against Smith

under 28 U.S.C. § 1927 and in disbarring him under Rule 11.

Accordingly, the district court's order sanctioning Attorney

Lawrence Smith is

AFFIRMED.

RC NTR TOES. LR SIR,

FILED JAN. 12, 2000

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 97-17344

TIMOTHY FRYE, Plaintiff-Appellant

v.

FEDERICO PENA, Secretary, Department

of Transportation, et al.,

Defendants-Appellees

Before: B. FLETCHER and PREGERSON, Circuit J udges, and

WEINER, District Judge. '

The panel, as constituted above, has voted to deny

appellant’s petition for rehearing. Judge Pregerson voted to

1 Honorable Charles R. Weiner, Senior United States District Judge for

the Eastern District of Pennsylvania, sitting by designation,

A-3

reject the suggestion for rehearing en banc and Judges B.

Fletcher and Weiner so recommended the rejection of the

suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing

en banc and no judge of the court has requested a voted on the

suggestion for rehearing en banc. Fed.R.App.P.35(b).

The petition for rehearing is denied and the suggestion for

rehearing en banc is re] ected.

FILED OCTOBER 2, 1997

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZ

NO. CIV 97-10 TUC RMB

TIMOTHY P. FRYE, Plaintiff,

VS.

FREDERICO PENA, Secretary Department

of Transportation, et al., Defendants.

ORDER

I. Introduction

The Court must decide whether to sanction attorney

Lawrence B. Smith for filing this patently frivolous lawsuit.

Smith also disobeyed this Court's prior injunction precluding

him from filing lawsuits such as this one without prior court

permission. Given the opportunity to dismiss this case, he

refused to do so. As such, he needlessly multiplied the

proceedings. All because he believes the federal courts across

the nation do not grasp his legal theory and/or have been

deceived by government attorneys.

In granting Defendants' Motion to Dismiss, the Court issued

an order to show cause as to why Smith should not be disbarred

and otherwise sanctioned for his misconduct. Smith was

explicitly ordered to address the applicability of Fed. R. Civ. P.

11(b)(1) and (2), ER 3.1 and 3.3(a)(1), Arizona Rules of

Professional Conduct, 28 U.S.C. § 1927, and this Court

February 21, 1997 Order. Ignoring the Court's directive, Smith

limited his response to the inappropriateness of Rule 11.

A-4

Defendants respond that the record establishes that Smith's

vexatious lawsuits are malicious, intended to harass

governmental agencies, and therefore, brought in bad faith.

Defendants assert that Smith's conduct has been tolerated long

enough and that serious measures are warranted. Accordingly,

they request that Smith be assessed monetary sanctions,

disbarred from federal court in this District, and a complaint

made to the State Bar of Arizona.

On July 7, 1997, the Arizona Supreme Court entered a

Mandate and Order Suspending Smith from the practice of law

in Arizona for failure to comply with Arizona's mandatory

continuing legal education requirements. As a result, Smith was

also suspended from further practice in this District. See Local

Rule 1,6(c). Smith has apprized the Court that he intends to

appeal the suspensions. Given the seriousness of Smith's

conduct here, and the fact that the Suspensions could be easily

rectified, the Court shall stil] consider the sanction of

disbarment.

II. Background

Plaintiff Timothy P. F rye's air transport pilot certificate was

suspended 90 days when he repossessed a B-747 [sic] aircraft

which was later found not to be airworthy. On January 6,1997,

Frye, through counsel Lawrence B. Smith, Gary S. Grynkewich,

and Edward S. Coleman filed suit and a motion for preliminary

injunction with regard to the suspension. Frye claimed that his

Fifth Amendment due Process rights and the Administrative

Procedures Act were violated when: (1) the Federal Aviation

Administration ("FAA") relied on Section 609 of the Federal

Aviation Act of 1958.49 U.S.C. § 44709 (1994) to suspend his

notice through publication of a tule regarding its policy to

impose suspensions and revocations as a penalty for violation

A-5

issues had been previously resolved by appellate courts

nationwide. Before allowing the requested discovery, the Court

warned Frye's three attorneys of their Page 2] ethical obligation

under ER 3.1 and that if the claims were later found to be

identical to claims consistently rejected by the Ninth Circuit,

counsel risked sanctions and a state bar complaint. The Court

ordered counsel to re-evaluate the case in light of prior circuit

precedent and to post a $20,000 bond if they elected not to

dismiss the case. See Order of February 21, 1997. Grynkewich

filed a motion to withdraw stating that he “took steps toward

having the action dismissed, however Larry Smith refused to

join in said stipulation." See Motion to Withdraw as Counsel of

Record at 1. The Court subsequently granted Grynkewich's

motion. See Frye v. Pena, No. CIV 97-10 TUC RMB (D.Ariz.

Mar. 28, 1997). On March 25, 1997, Plaintiff Prye also

stipulated to the withdrawal of both Grynkewich and Coleman.

Smith, on the other hand, posted the required bond and

submitted his Request for Admissions to the Defendants.

Defendants diligently completed the voluminous Request which

included 106 admissions with various subparts. Defendants also

reviewed over. 200 pages of documents to confirm or to deny

whether the documents were "genuine."

On May 20, 1997, the Court granted Defendants’ motion to

dismiss finding Frye's claims barred by Ninth Circuit precedent.

Specifically, the Court found "Smith knew that his legal

arguments in this case were 'unwarranted by existing law’ and

that they could not be considered 'nonfrivolous arguments for

the extension, modification, or reversal of existing law’ ...." See

Order of May 20, 1997 at 12. Smith was ordered to show cause

"why he should not be disbarred from practicing in the District

of Arizona, why a State Bar complaint should not be filed and

why he should not be sanctioned for violations ‘of Fed. R. Civ.

P. 11, ER 3.1 and 3.3(a); 28 U.S.C. § 1927; and the Court's

February 21, 1997 Order." /d. at 14. [Page 4]

II. A Lawyer's Ethical Obligations

A lawyer practicing in federal court in Arizona is required

to follow the Rules of Professional Conduct as set forth in Rule

A-6 (ae

42 of the Rules of the Supreme Court of the State of Arizona.

See Rules of Practice of the United States District Court for the

District of Arizona, Rule 1.6(d). Under Arizona's ER 3. 1, "[a]

lawyer shall not bring...a Proceeding, or assert or controvert

an issue .. . unless there is a basis for doing so that is not

extension, modification or reversal of existing law.” 17A

A.R.S. S.Ct. Rules, Rules of Professional Conduct, Rule 42,ER

3.1 (1985). A lawyer is also ethically obligated to exhibit

candor to the court: "A lawyer shall not knowingly, make a

false statement of material fact or law to a tribunal." Id. at ER

The Federal Rules of Civil Procedure provide that an

attorney who files a pleading is:

certifying that to the best of the person's knowledge.,

information and belief, formed after an inquiry reasonable

under the circumstances,

(1) it is not being presented for any improper purpose, such

as to harass or to cause unnecessary delay or needlessly

increase the cost of litigation;

(2) the claims, defenses, and other legal contentions therein

are warranted by existing law or by a nonfrivolous

argument for the extension, modification, or reversal of

existing law or the establishment of new law.

Fed. R. Civ. P. 1 1(b)(1) and (2). Thus, Rule 11 provides for

the imposition of sanctions when a filing is frivolous, legally

unreasonable, or without factual foundation, or is brought for an

improper purpose. Simpson v. Lear Astronics Corp., 77 F.3d

1170 (9th Cir. 1996). Frivolous filings are "those that are both

baseless and made without a reasonable and competent

inquiry." Buster v. Greisen, 104F.3d 1 186, 1190 (9th Cir. 1997.

A claim that is unfounded on existing law, but that straight-

forwardly seeks a change in existing law that is not utterly

implausible, Should, in the absence of clear evidence of a

A-7

a ea eR i

different subjective intent, be considered brought in good faith.

In re [Page 5] Ronwin, 113 Ariz. 357, 555 P.2d 315, 318 (Ariz.

1976), cert. denied, 430 U.S. 907 (1977), and cert. denied, 439

U.S. 828 (1978). That is not the case here.

Additionally, federal law provides:

Any attorney or ocher person admitted to conduct cases in

any court of the United States or any Territory thereof who

so multiplies the proceedings in any case unreasonably and

vexatiously may be required by the court to satisfy

personally the excess costs, expenses, and attorneys’ fees

reasonably incurred because of such conduct.

28 U.S.C. § 1927. Section 1927 "applies only to unnecessary

filings and tactics once a lawsuit has begun." /n re Keegan

Management Co., Securities Litigation, 78 F.3d 431, 435 (9th

Cir. 1996). As such, an attorney is subject to sanctions under

this section for all proceedings other than the filing of the

complaint. Jd. Before a court may engage in any fee-shifting

sanctions under § 1927, it must find that "the attorney acted

recklessly or in bad faith." Goehring v. Brophy, 94 F.3d 1294,

1306 (9th Cir. 1996), cert. denied, U.S._117S.Ct. 1335, 137

L.Ed.2d 495 (1997. The Ninth Circuit has further defined this

requirement to hold that section 1927 sanctions “must be

supported by a finding of subjective bad faith." Keegan, 78

F.3d at 436. "Bad faith is present when an attorney knowingly

or recklessly raises a frivolous argument or argues a

meritorious claim for the purpose of harassing an opponent."

Id.

IV. Discussion

This matter arises from Smith's repeated and unsuccessful

| efforts to challenge the FAA's authority to revoke or suspend

pilots' air transportation certificates for safety violations. This

Court's first opportunity to address Smith's theory was in Mace

A-8

v Skinner, CIV 96-676-TUC-RMB (D.Ariz. 1992).' In deciding

Mace, the Court discussed [Page 6] the substantial unfavorable

case law generated by Smith's litigation efforts against the FAA,

the National Transportation Safety Board (NT SB) and the

Department of Transportation (DOT). In granting the Mace

defendants’ motion to dismiss, the Court imposed a sanction in

the form of an injunction against Smith for filing a frivolous

lawsuit. The Court ordered Smith to seek prior permission from

the Court before filing any future claims against the FAA. See

Mace vy. Skinner, CIV 91-676-TUC RMB (D.Ariz. June 6,

1995) (Order granting Defendants’ motion to dismiss). The

Order held that "[a]ny attempted violation of this Order shall

subject Smith to the contempt powers of this Court.” Jd

Before a court may engage in any fee-shifting sanctions

under § 1927, it must find that "the attorney acted recklessly or

in bad faith. Smith criticizes each decision made by those

courts, as well as the unfavorable decisions made in his own

cases of Komjathy, T, earney, Rochna, Dilley and Foster. He

attacks the faulty reasoning of these prior decisions and derides

the courts for their superficial analyses of his theory. Smith lays

the majority of the blame with the unethical government

lawyers who have intentionally misled the courts. Smith

accuses the FAA, and Peter Lynch in particular, of a twenty

year Cover-up to perpetuate an intentional deception [Page 7]

on the courts. Smith urges the Court to study his law review

article, FAA Punitive Certificate Sanctions: The Emperor

A-9

Wears No Clothes; Or, How Do You Punish a Propeller?, 14

Transp. L.J. 59 (1985) which definitely sets forth the bases of

Smith's theory.

A. Smith's Professional misconduct

In 1993, Rule 11 was amended to establish an objective

standard intended to eliminate the "“empty-head pure-heart”

justification for patently frivolous arguments. See Fed. R. Civ.

P. 11 cmt. (1993). Rule 11, as amended, renders the rule more

favorable to the party against whom sanctions are being sought.

Warren v. Guelker, 29 F.3d 1386, 1389 n.1 (9th Cir. 1994). The

comments to the rule suggest some of the factors a Court may

consider when deciding whether to impose sanctions:

(1) whether the improper conduct was willful, or negligent;

(2) whether it was part of a pattern of activity, or an isolated

event;

(3) whether it infected the entire pleading, or only one

particular count or defense;

(4) whether the person has engaged in similar conduct in

other litigation;

(5) whether it was intended to injure;

(6) what effect it had on the litigation process in time or

expenses;

(7) whether the responsible person is trained in the law;

(8) what amount, given the financial resources of the

responsible person, is needed to deter that person from

repetition in the same case; and

(9) what amount is needed to deter similar activity by other

litigants.

Fed. R. Civ. P. 11 cmt. (1993). Defendants argue that Smith's

conduct implicates each of these factors. The Court agrees.

Smith has tenaciously attempted to convince the courts that

the legislative history of the Air Commerce Act of 1926 proves

his theory. According to Smith, Congress intended civil money

penalties with a right to a jury trial as the sole [Page 8}

enforcement mechanism for safety violations, rather than the

A-10

Pursuant to 49 U.S.C. § 44709 (1994), previously codified

as Section 609(a) of the 7 Federal Aviation Act of 1958, as

amended, 49 U.S.C. § 1429(a) (1 992)), the Administrator may:

issue an order amending, modifying, suspending, or

revoking . . . any part of a certificate issued under this

chapter if . . . the Administrator decides after conducting a

reinspection, reexamination, or other investigation that

safety in air commerce or air transportatton and the public

safety requires that action... .

49 USC. § 44709(b)(1)(A) (1994). The implementing

regulation of this section provides in relevant part:

Administrator may issue an order amending, suspending, or

revoking all or part of any .. . airman certificate...

14 CFR. § 13.19 (1995). The Ninth Circuit has consistently

upheld this law as constitutional and permissible authority for

667 (10 Cir. 1995); Knipe v. Skinner, 999 F 24 708 (2d Cir.

1993); Hite v. National Transp. Safety Bd., 991 F.24 17 (1s

Cir. 24 1993); Rochna y. National Transp. Safety Bd., 929 F 2d

A-1]

13 (1st Cir.), cert. denied, 502 U.S.910 (1991); Hill v. National

Transp. Safety Bd., 886 F.2d 1275 (lOth Cir. 1989); Tearney v.

National Transp. Safety Bd., 868 F.2d 1451 (Sth Cir.), cert.

denied, 493 U.S. 937 (1989); [Page 9] Komjathy v. National

Transp. Safety Bd., 832 F.2d 1294 D.C. Cir. 1987), cert denied,

486 U.S. 1057 (1988).

In his response to Defendants’ motion to dismiss, Smith

attempts to distinguish these cases from Frye by arguing that

those courts were never presented with Frye's particular claim

that the FAA's procedures constitute an impermissible

"executive branch created penalty.” Smith knows that this is an

inaccurate statement of law and fact.

Smith's "executive branch creation" claim was specifically

argued and rejected by this Court in its June 6, 1995 opinion in

Mace, slip op. 8-9 (D.Ariz. June 6, 1995) (Plaintiff asserts that

[the] FAA revocation policy is an illegal executive branch-

created penalty."). Similarly, The Honorable Carl A. Muecke in

Foster v. Skinner, CIV 92-557 PHX-CAM (D.Ariz. 1993)

considered the issue and rejected it.” In dismissing the [Page

3 Specifically, paragraph 35 of the Foster complaint authored by Smith

states:

First Cause of Action

35. The suspension or revocation of pilot, mechanic or operating

certificate by the FAA as a penalty or sanction for the violation of

one or more FARs has never been authorized by law. Only Congress

may constitutionally create penalties, sanctions, or benefits, that is, it

may not delegate its Article I, Section I, legislative authority to any

other branch of the government. The use of certificate suspension

and revocations as penalties is now and always has been, since the

federal government first initiated regulation of aviation through the

Air Commerce Act of 1926, a creation of the executive branch, not

Congress.

Foster Complaint, at § 35, March 25, 1992. The Aface Complaint states:

First e of Action

32. The suspension or revocation of pilot, mechanic or operating

certificate by the FAA as a penalty or sanction for the violation of

one or more FARs has never been authorized by law. Only Congress

(continued...)

A-12

10] complaint, Judge Muecke imposed Rule 11 sanctions

against Smith because Smith “personally knew-based on his

*(...continued)

may constitutionally create penalties, sanctions, or benefits, that is, it

may not delegate its Article I, Section I, legislative authority to any

other branch of the government. The use of certificate suspensions

and revocations as penalties is now and always has been, since the

federal government first initiated regulation of aviation through the

Air Commerce Act of 1926, a creation of the executive branch, not

Congress.

Mace, Complaint, (emphasis added). Foster and Mace are virtually

identical. Now, compare Foster and Mace to the Frye complaint:

i f Action

20. The FAA's claim of authority to punish an airman for the alleged

violation of a safety regulation by suspending his pilot's license is

based on Section 609 of the Federal Aviation Act of 1958 (FA Act),

as amended. The contention is that certain language in that section

authorizes the FAA Administrator to suspend or revoke certificates

anytime he deems ‘that safety in air commerce or air transportation

and the public interest requires.’

21. Based upon this vague language federal aviation officials

decided that is was in the interest of air safety to impose suspensions

and revocations on certificate holders as punishment for safety

violations-obviously figuring that no one could argue with the logic

of that. This, even though no language is contained in Section 609

that so much as hints at a connection between the commission of a

safety violation and Suspension or revocation of a pilot's license, or

any other certificate; no words, such as “regulation,” “violation,

sanction,” or “penalty.”

22. Thus based on these officials’ Own statutory interpretation, logic

dictates that the executive branch of the federal government, not

Congress, created certificate penalties. It is fundamental under

Article I, S |, of the Constitution that only the legislative branch of

the federal government, not the executive, may create penalties, or

benefits, i.e. food stamps. Thus the imposition upon Capt. Frye of a

suspension of his pilot's license as a penalty for alleged air-safety

[sic] violations violated his Fifth Amendment right to due process.

Frye Complaint at 49 20-22. Clearly, Frye raises the very claim rejected

in Mace, and Foster.

A-13

losses in the Ninth Circuit and in other courts of appeals-knew

that [ten of the thirteen claims] were not grounded in law.” The

Ninth Circuit affirmed Judge Muecke's decisions. See Foster,

70 F.3d at 1089.

As to Smith's second claim regarding publication in the

Federal Register, it has also been resoundingly rejected by the

courts including this one. It is firmly established that the APA

does not require publication of the FAA's policy to suspend or

revoke certificates as a method of imposing sanctions for

violations of FARs. Indeed, the Court's research has discovered

no less than eleven district court cases and six circuit decisions

where Smith raised the two claims presented today. See Clark

v. Busey, 959 [Page 11] F.2d 808 (9th Cir. 1992); Rochna v.

National Transp. Safety Bd., 929 F.2d 13 (ist Cir. 1991);

Tearney v. National Transportation Safety Board, 868 P.2d

1451 (Sth Cir.), cert. denied, 493 U.S. 937 (1989); Komjathy v.

National Transp. Safety Bd., 800 F.2d 1514 (D.C. Cir. 1986);

Go Leasing Inc. v. National Transp. Safety Bd., 800 F.2d 1514

(9th Cir. 1986); Foster v. Skinner, 70 P.3d 1084 (9th Cir. 1995);

Foster v. Skinner, CIV 92-557-PHX-CAM (D.Ariz. 1993);

Mace v. Skinner, CIV 91-676-TUC-RMB (D.Ariz. 1992);

Roundtree v. Skinner, A91-566-CIV-JKS (D.Alaska 1993),

aff'd, 40 P.3d 1036 (9th Cir. 1994)(unpublished table decision);

Roundtree v. U.S.A., J92-029 CIV (D.Alaska 1992); Bellows v.

United States, CV-92-00030-JWS (D.Alaska 1993), aff'd, 42

F.3d 1398, 1994 WL 658999 (9th Cir. 1994) (unpublished table

decision); Bellows v. Skinner, A91 11 565 CIV (D.Alaska

1993), aff'd, 28 P.3d 104, 1994 WL 283738 (9th Cir.

1994)(unpublished table decision); Knipe v. Skinner, 91-CV-

1338-TJM (N.D.N.Y. 1991); Knipe v. United States, 92-CV-

1389-TJM-DNH (N.D.N.Y. 1993); Dilley v. United States, 92-

NC-120W *(D.Utah 1993), aff'd, 16 F.3d 415 (10th Cir. 1994);

Dilley v. Skinner, 91-NC119W (D.Utah 1991); Mace v. United

States, 92-750-TUC-WDB (D.Ariz. 1993), aff'd, 42 F.3d 1400

(9th Cir. 1994) (unpublished table decision). Smith brought

these suits either as a direct appeal from the agency

administrative hearings or under the Federal Tort Claims Act or

A-14

as Bivens actions. Smith continues to assert this claim even

though he is all too aware of Settled case law to the contrary.

Smith has shown his contempt for this Court. He averred to

the Court that Capt. Frye's claims were distinguishable from

Mace y. Skinner, CIV 91-676-TUC-RMB. In Mace, the

plaintiffs aircraft mechanic license was revoked for violations

of the FARs. Mace set forth the case law in detail recognizing

the authority and the constitutional

soundness of the FAA's authority to impose a revocation or

suspension as a sanction. Mace, slip op. at 8-10 (June 6, 1995).

That decision also cited the circuit cases which found that the

APA did not require publication in the Federal Register or the

Code of [Page 12] Federal Regulations. Id at 11. In granting

defendants’ motion to dismiss, the Court believed an injunction

against filing future lawsuits of this sort would deter Smith. Jd

at 14. It did not.

Smith ignored that Order and never formally sought

permission to file the present case. Smith apologizes for this

"oversight" by explaining that he was so tired mentally and

physically that when he received the Mace decision, he "just

skimmed the order, and later tossed it in a file box which

wound up in [his] Storage shed." Response at 2 n2. He

contends that he "honestly believed that the order had simply

prohibited filing any further proceedings in Mace." Jd. Even if

the Court were to find this conduct merely reckless, which it

does not, there is no excuse.

At a January 28, 1997 hearing, the Court specifically asked

Smith to distinguish Mace. Smith assured the Court that:

Well, Mace against Skinner, number one, it's untrue that

Your Honor said I couldn't bring anymore such suits. It's

just in that case that you ordered the clerk not to accept

anymore pleadings. Anyway by that time I was worn out

anyway and didn t appeal it.

But the point - there's an absolute difference. One, you

might go through Mace against Skinner and say - I don't

remember specifically. That was an emergency revocation

A-15

case. It raised a lot of different issues.

Transcript of January 28, 1997 at 8:16-24. Ata minimum given

the Court's concern, Smith should have reviewed Mace and

corrected the record. These facts suggest strongly that Smith

was not concerned with candor to the Court. First, Smith knew

Frye's claims were identical to the issues raised, and rejected, in

Mace and Foster. He was also driven by his desire to have

Defendants answer his Request for Admissions. The Court

concludes that Smith's representations on January 28, 1997

were intentional misstatements designed to mislead the Court

in order to further his personal agenda. In doing so, Smith

violated ER 3.3(a)(1).

According to Smith, no court has adequately addressed his

"executive branch” creation argument. At hearing, Smith

criticized the Mace decision as wanting in logic [Page 13] and

analyses. He contends that this provides the basis for finding

that his theory is a nonfrivolous argument for the reversal of

law. The Court finds this contention without-merit. The Frye

claims have been repeatedly rejected [emphasis added] and

do not constitute a good faith argument for the reversal of the

law in this area. Rather, the fine distinctions that Smith

contends are self-evident, are utterly implausible and

nothing more than semantic double-talk. [Emphasis added]

Smith brings essentially the same claims repeatedly in the face

of contrary case law. Indeed, Smith admits that "Mace was one

of eleven lawsuits, all in the same vein (some involving the

FAA emergency power, like Mace), six Bivens constitutional

rights violations cases, and five Federal Tort Claims Act cases

paralleling them." Response at 2 n.2. Mace, Foster, Mace,

Roundtree, Rochna, Tearney, Komjathy, Go-Leasing, Knipe

and Dilley resoundingly establish by clearing and convincing

evidence that Smith knew his legal arguments in this case were

unwarranted by existing law. He knew that they could not be

considered a "nonfrivolous argument for the extension,

modification, or reversal of existing law" under Fed. R. Civ.

P.11(b)(2).

A-16

His repeated attempts to prosecute his claims has been at

considerable cost to the taxpayers of this Nation in terms of

time and effort expended by government officials, lawyers and

judges. The public's confidence in the system has been

undermined by his persistent efforts. The clients who have

put their faith in Smith, have found themselves liable for the

costs of frivolous litigation. There comes a point when

persistence becomes an obstruction. The Court holds that Smith

has engaged in professional misconduct falling below that

which is expected of lawyers practicing in this District. Smith's

repetitive prosecution of baseless claims is evidence that he

rejects any view but his own, including the federal courts to

which he owes an ethical obligation. As such, Smith has

violated ER 3.1. [Page 14]

B_ What Sanctions Are Appropriate

When determining an appropriate sanction, ABA Standard

3.0 suggests courts consider: (1) the duty violated; (2) the

lawyer's mental state; (3) the actual or potential injury caused

by the lawyer's conduct; and (4) the existence of aggravating

and mitigating factors. See ABA Standards For Imposing

Lawyer Sanctions 3.0 (1986). Here, Smith violated his ethical

duty to this Court, opposing counsel and his client. The Court

lacks the expertise to question Smith's mental state. The

expense of his lawsuits is well-documented. One mitigating

factor is Smith's respectful demeanor at hearings. [Emphasis

added.] This does not excuse his conduct, however. Therefore,

the Court shall consider whether it is appropriate to impose

Defendants' attorneys fees and costs as a 11 sanction.

1. Defendants’ Attorneys’ Fees and Costs

Before a court can impose an opponent's attorneys’ fees and

nontaxable costs, under 28 U.S.C. § 1927, it must find bad

faith. That is, that the lawyer "knowingly or reckless raise[d] a

frivolous argument or argue[d] a meritorious claim for the

purpose of harassing an opponent." Keegan, 78 F.3d at 436.

Those elements are present here. Filing successive complaints

which Smith knows are frivolous is sufficient evidence of his

bad faith intent to injure the FAA, the NTSB and their

A-17

FARRER rans xeaitmeneniasimemmen :ericsene amr mnenenmeani tn a nt

Ne ee

employees. Buster, 104 F.3d at 1190 ("[S]uccessive complaints

based upon propositions of law previously rejected may

constitute harassment under Rule ll.”). Foster, Mace and Frye

and the twelve other district court cases cited above provide

sufficient evidence of his malicious intent.

Smith's brief also provides concrete evidence of his bad

faith intent. In 1967-68, 24 Smith worked as a staff lawyer with

the Office of General Counsel of the FAA. He was discharged

for failure to satisfactorily complete the probationary period.

Response at 13. In Smith's words:

They canned me on grounds I'd flunked my one-year civil

service probationary period. They said I didn't meet the

standards required of any government lawyer. I agreed with

them wholeheartedly: J couldn't possibly live down to the

professional standards they reflected.

Id. Smith goes on to discuss the agency lawyers:

I bring this [discharge] out in the open for a reason. Not that

itexcuses the way Justice Department lawyers have handled

these cases, which will be explored below, but to

underscore the fact there is little doubt Peter Lynch and

others, for motivational reasons persuade Justice lawyers

I'm doing all this as sour grapes or retaliation. which is utter

nonsense. My motivation is just what I've said, what FAA

lawyers like Peter Lynch are doing, is the greatest abuse of

power in the history of the federal bureaucracy.

Id. Smith is referring to Peter J. Lynch who is attorney with the

FAA. Lynch was also opposing counsel in Smith's Go Leasing,

Komjathy, Canfield,’ and Hite cases. Smith later named Lynch

as a defendant in Knipe, Bellows, Mace and Dilley. Today,

Smith accuses Lynch of an "unprofessional, unethical, a

4 See Canfield Aviation, Inc. v. National Transp. Safety Bd., 854 F.2d

745 (Sth Cir. 1988).

A-18

carefully calculated ploy to mislead the appeals court.”

Response at 34. Smith elaborates, “Dilley is of vital interest

here because it demonstrates how desperate Lynch was-and-is-

to gull courts into believing any petition for review was just

another attack by Don Quixote Smith." Jd. Smith speculates,

without substantiation, that FAA attorney Harry Gold who

worked on the Dilley appellate brief left public service because

Gold did not want to be a party to Lynch's deceit. Smith

speculates: "[as a] fine young, bright and ethical man, I have not

the slightest doubt that having to put his name to a brief which

[Gold] knew to be a brew of misleading argument, if not

downright lying was the precipitating factor in his action.

Response at 35 n.29.

Smith does not limit his accusations of dishonesty to Lynch.

He contends Neil R. Eisner, Assistant General Counsel of the

Department of Transportation, (Response at 15); Robert Doehl,

attorney, U.S. Department of Justice, (Response at 3); Wendy

L. Rome, attorney, U.S. Department of Justice, (Response at 13

n.11); Karen Bury, [Page 16] FAA attorney, (Response at 56-

57); and John Cassady, Deputy Chief Counsel, FAA (Response

at 58) are willing participants in this conspiracy to mislead the

Courts.* Such conclusory attacks on these attorneys is

unconscionable and provides further proof that Smith is bent on

using the legal system to maliciously harass these individuals.

This Court is not the first court to identify Smith's vendetta

against the FAA. As the Second Circuit recognized “the district

court's conclusion that Smith appears to be ‘pursuing a personal

agenda against the FAA’ is supported by the record. Knipe, 19

F.3d at 77. In upholding the district court's imposition of

sanctions, the Ninth Circuit found the following factors

significant:

5 Eisner was a defendant in Foster, Mace, Bellows and Knipe. Doehl and

Rome were Opposing counsel in Roundtree and Knipe. Bury was

Opposing counsel in Tearney and Canfield. Cassady was a defendant in

Mace, Bellows and Knipe.

A-19

ae Sere

First, Mr. Smith declined to challenge any aspect of the

sanctions. Second the district court thoroughly examined

Smiths litigious history, and stated that Smith filed a

frivolous complaint which contained at least ten claims that

he personally knew-based on his loses [sic] in the Ninth

Circuit and in other courts of appeals-were not well-

grounded in law. Third, Smith's relentless pursuit has

imposed significant litigation costs on Defendants; thus, |

inflicting further expense and delay upon Defendants would

not be just.

Foster, 70 F.3d at 1088.

Based on the foregoing, the Court holds that this frivolous

suit was brought in bad faith and solely for the purpose of

harassment in violation of Rule 11 and U.S.C. 1927. A proper

sanction is to impose opposing counsel's attorneys' fees and

travel expenses. Accordingly, pursuant to 28 U.S.C. § 1927,

Smith shall be liable for the attorneys’ fees and travel costs

incurred by the Justice Department lawyers in this case.

Attorney Lucinda A. Love expended 275 hours at $93.55

per hour for a total of $25,726.25. Attorney Sandra M.

Schraibman expended 42.75 hours at $113.34 per hour for a

total of $4,845.29. Attorney Robert P. Vente, a trial attorney

with the FAA expended 85.5 hours at $35.06 for a total of

$2,997.63. In addition, the Department of [Page 17] Justice

incurred travel costs of $578.51 for Attorney Love's appearance

at the motion to dismiss hearing. The total costs to the Justice

Department and/or FAA to defend this case, not including

Love's oral argument or travel expenses relating to this issue are

$34,117.68.

Smith contends that these fees-are unreasonable. He points

to his other cases where the sanctions imposed were much

smaller. The Court is unsympathetic. Smith did not dismiss

this action when he had the opportunity to do so. Instead, he

posted the $20,000 bond and needlessly multiplied the

proceedings at the expense of Defendants and the Court. The

Court warned Smith that by posting the bond,he risked

A-20

Pies

ae

‘

sanctions and a state bar complaint. See Order of F ebruary 21,

1997. Smith accepted that risk. His Request for Admissions

included 106 admissions with subparts. Defendants were also

required to review over 200 pages of documents to confirm or

deny whether they were genuine. Smith cannot be surprised by

the amount of fees incurred herein. Based on the circumstances

of this case and the factors set forth in Kerr v. Screen Extras

Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied, 425

U.S. 951 (1976), the Court finds that the Defendants fees and

costs reasonable.

2. Disbarment From F, ederal Court

Local Rule 1.6 provides in relevant part:

(a) Any member of the bar of the Court may be

disbarred or otherwise disciplined after such hearing as the

Court may in each particular instance direct.

Rules of Practice of the United States District Court for the

District of Arizona, Rule | -6(a) (1994). Any sanctions imposed

under Rule 11 is "limited to what is sufficient to deter repetition

of such conduct... ." Fed. R. Civ. P.11(c)(2). Rule 11 is

"aimed at curbing abuses of the judicial system." Business

Guides v. Chromatic Communications, 498 U.S. 533, 542,11]

S.Ct. 922, 929, 112 L.Ed.2d 1 140 (1991) (citing Cooter & Gell

v. Harmarx Corp., 496 U.S. 384, 397 (1 990)). Relying on Rule

11, district courts and [Page 18] courts of appeal have

sanctioned Smith Personally without effect.5 For instance, in

6 See Foster, CIV 92-557-PHX-CAM (D.Ariz. October 14,

1993)(imposing $14,704), aff'd 70 F.3d 1084 (9th Cir 1995); Bellows v

Skinner, 69 F.3d. 543, 1995 WL 635174 (9th Cir. 1995) (unpublished

decision affirming sanction of $6,250) and Bellows y. Skinner, 48 F.3d

1231 (unpublished decision remanding district court's sanctions against

F.3d at 1040; Knipe v. Skinner, 91-CIV-1338 (N.D.N.Y. October 23,

1992), aff'd 99 F.2d 708 (2d Cir. 1993) (imposing a $9,000 sanction);

(continued...)

A-2]

sg

Bellows, Judge James K. Singleton observes:

I do not know if Smith is mentally ill, a vexatious litigant,

or simply a modern day Don Quixote tilting at windmills.

It doesn't matter. It is clear that Smith is bringing these

frivolous lawsuits solely for the purpose of multiplying

litigation and harassing his opponents. Such conduct

warrants sanctions.

Bellows, 69 P.3d at 543, 1995 WL at *1. The Tenth Circuit

Court of Appeals admonished Smith in Dilley, that “[f]urther

litigation on these or related theories may subject Mr. Smith to

possible sanctions.” Dilley, 49 F.3d at 670. The Second Circuit

Court of Appeals found Smith's appeal frivolous and ordered

that he show cause why he should not be assessed double costs

and fees. Knipe v. Skinner, 999 F.2d 708 at 710. And the First

Circuit's classic quote:

in Tearney Komjathy and Go Leasing, the various

petitioners were represented by the selfsame attorney who

represents the petitioners in this case. Persistence can be a

virtue, but, to paraphrase Emerson, a foolish persistency is

the hobgoblin of little minds. We agree with the FAA that

Rochna's attorney remains “oblivious to the obvious."

Rochna, 929 F.2d at 13. In referring to Smith's theory outlined

in his law review article, the Ninth Circuit recognized:

Once he embraced that idea, he climbed upon a hobbyhorse

from which nothing has dislodged him. We can agree with

the famous author who wrote, “So long as a man rides his

Hobby-Horse peaceably and quietly I along the King s

highway, and neither compels you or me to get up I behind

°(...continued)

Knipe v. United States, 92-CV-1389 (N.D. N.Y. Apr. 12 1993) (imposing

$7,252.89 sanction), 19 F.3d 72 (2d Cir. 1994) (affirming the imposition

of sanctions); Mace, CIV 91-676-TUC-RMB, slip op. 8-9 (D. Ariz. June

6, 1995) (imposing an injunction against future similar filings).

A-22

him . . . what have either you or I to do with it?" Laurence

Sterne, Tristram Shandy 13 (Modern Library 1950).

I do not know if Smith is menially ill, a vexatious litigant,

or simply a modern day Don Quixote tilting at windmills.

warrants sanctions.

Bellows, 69 P.3d at 543, 1995 WL at *1. The Tenth Circuit

Court of Appeals admonished Smith in Dilley, that “(flurther

litigation on these or related theories may sub For instance, in

Bellows, Judge James K. Singleton observes:

I do not know if Smith is mentally ill, a vexatious litigant,

or simply a modern day Don Quixote tilting at windmills.

It doesn't matter. It is clear that Smith is bringing these

frivolous lawsuits solely for the Purpose of multiplying

litigation and harassing his opponents. Such conduct

warrants sanctions.

Bellows, 69 P.3d at 543, 1995 WL at *]. The Tenth Circuit

Court of Appeals admonished Smith in Dilley, that “[flurther

litigation on these or related theories may sub

Roundtree, 40 F.3d at 1036. Roundtree further observes:

Plainly put, the complaint was patently frivolous.

Moreover, it is one of multiple complaints brought against

the government and based upon the self-same theories. To

be sure, this is not a case where the same plaintiff has sued

A-23

over and over again, but that is a distinction without a

- difference. It is of an almost worst stripe because a lawyer

has been able to beguile plaintiff after plaintiff into coming

along with him as he rides his hobbyhorse against the

government.

Id. (internal citations omitted).

Frye represents the last chapter in the Smith saga of

frivolous lawsuits against the FAA, NTSB or DOT. The ride

has come to an end, at least in this District. Timothy Frye is

the last client to be induced to ride double on Smith's futile

charge against these agencies. Sanctions, monetary or

otherwise, do not deter Smith from filing frivolous claims on

behalf of clients who rely on his expertise as a member in good

standing with the federal bar. Under the circumstances,

disbarment from the practice of law in this District is mandated.

The Court does not issue this disbarment lightly. Serious

misconduct warrants serious measures. Consequently, and

based on the inherent power of the Court, Lawrence B. Smith

shall no longer be allowed to practice law in the United States

District of Arizona until he can satisfy the judges of this District

of his fitness to practice law. The State Bar of Arizona shall be

provided a copy of this Order for whatever disposition it deems

appropriate.

V. Conclusion

Based on the foregoing,

IT IS ORDERED that:

(1) Lawrence B. Smith is herewith disbarred from the

practice of law in the 26 federal courts of the District of

Arizona; pursuant to 28 U.S.C. § 1927,

(2) Defendants are awarded reasonable attorneys’ fees in the

amount of $34,117.68 and travel costs in the amount of

$578.51;

(3) the $20,000.00 bond is hereby forfeited to Defendants

as partial payment for assessed fees and costs; the Clerk of the

Court shall release the bond to the Defendants;

(4) the Clerk of the Court provide a copy of this Order to

A-24

the Disciplinary Commission of the State Bar of Arizona for

whatever disposition it deems appropriate.

DATED this 2nd day of October, 1997

Richard M. Bilby

Senior United States District Judge

FILED MAY 20, 1997

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

TIMOTHY Pp. FRYE, Plaintiff,

vs.

FREDERICO PENA, Secretary Department

of Transportation, et al., Defendants.

NO. CIV 97-10 TUC RMB

ORDER

Introduction

Plaintiff Timothy P. F rye’s air transport pilot certificate was

suspended 90 days when he repossessed a B-747 [sic] aircraft

which was later found to be unairworthy. He claims that the

Acting Administrator, Federal Aviation Administration (FAA);

Nicholas G. Garaufis, Chief Counsel, Federal Aviation

Administration; Loretta Alkalay, Assistant Chief Counsel,

Eastern Region, FAA: and the National Transportation Safety

Board.

On January 6, 1997, Frye, through counsel Gary S.

Grynkewich, Edward S. Coleman and Lawrence B. Smith, filed

suit and a motion for preliminary injunction with regard to his

between the commission of a safety violation and suspension or

revocation ofa pilot's license," (Complaint, §] 21); and (2) [Page

2] the FAA failed to provide notice through publication of a

rule of its policy to impose suspensions and revocations as a

penalty for violation of air safety rules. (Complaint, { 23).

With the motion for preliminary injunction, Frye sought

permission to conduct discovery by having Defendants

complete a Request for Admissions. The Court's initial review

of the case questioned whether these claims had a basis in law

arising from its grave concern that the legal issues been

previously resolved by appellate courts nationwide, including

the Ninth Circuit Court of Appeals. Before allowing the

requested discovery, this Court warned Plaintiff's three

attorneys of their ethical obligation under ER 3.1 and that if the

claims were later found to be identical to claims consistently

rejected by the Ninth Circuit, counsel risked sanctions and a

State Bar complaint. The Court ordered counsel to re-evaluate

the case in light of prior circuit law and required them to post

a $20,000 bond if they decided to proceed with this suit. See

Order of February 21, 1997.

Consequently, attorney Gary S. Grynkewich [Page 3] filed

a motion to withdraw from this case stating that he "took steps

toward having the action dismissed, however Larry Smith

refused to join in said stipulation." See Motion to Withdraw as

Counsel of Record at 1. The Court subsequently granted

Grynkewich's motion. See Frye v. Pena, No. CIV

97-10-TUC-RMB (D.Ariz. Mar. 28, 1997). On March 25, 1997,

Plaintiff Frye also stipulated to withdrawal of attorneys

Grynkewich and Edward S. Coleman.

Smith, Frye's remaining counsel, posted the required bond

and submitted a Request for Admissions to the Defendants. The

Court desirous of having the issues settled on a complete

record, ordered the Defendants over their objection, to respond

to Smith's Admissions. Defendants diligently completed the

voluminous Request which included 106 admissions with

subparts. They also reviewed over 200 pages of documents to

confirm or to deny whether the documents were "genuine."

A-26

Plaintiff [Page 2] filed a motion seeking to have admissions

nos. 4 and 11 deemed admitted because he feels they were not

answered to his satisfaction and were but another example "of

smoke and mirrors and red-herrings" that plaintiff's counsel has

encountered previously. That motion is meritless and is denied.

Smith also filed a motion for sanctions on the basis that he

gave Defendants the Opportunity to withdraw their motion to

dismiss and they failed to do so. That Motion is also meritless

Background

Frye holds an airline transport pilot's certificate which

entitles him to Carry passengers or cargo for hire. On October 7,

1995, Frye with a co-pilot repossessed a Boeing B-737 aircraft

from the Pittsburgh International Airport and flew it to Tucson,

Arizona.

against Frye and reduced the Proposed sanction from 180 to 90

days. On October 18, 1996, the FAA issued an order

suspending Frye's commercial pe'ot certificate fora period of 90

days The suspension order charged that Frye had violated a

number of FAA regulations ("FARs") by operating an unworthy

aircraft and by operating an aircraft in a careless or reckless

manner when he piloted the Boeing B-737 from Pennsylvania

to Arizona.

[Page 4] According to the Order of Suspension, the FAA

Administrator determined that both public interest and safety in

A-27

a ————__i

air commerce required the suspension of Frye's commercial

pilot certificate.

Frye appealed the decision with the National Transportation

Safety Board ("NTSB") on November 4, 1996. The filing of

such an appeal stays the Order of Suspension during the

pendency of the appeal. To date, no hearing has been set in that

appeal. Consequently, Frye continues to be able to fly under

authority of his pilot's certificate. Frye is presently flying a

Boeing B-727 for a private individual in Riyadh, Saudi Arabia.

Subject Matter Jurisdiction

Defendants argue that this Complaint is nothing more than

an attempt to preclude agency determination on the merits of

the FAA action in this case. Frye contends he is properly

asserting constitutional challenges to the FAA's authority. Both

parties are correct.

Frye's prayer for relief is a declaration that his constitutional

rights have been violated. He seeks a preliminary and

permanent injunction enjoining defendants from pursuing the

present certificate action against him. Complaint at 5. Frye also

seeks "such other and further relief as the Court may deem just

and equitable.” Id. at 6.

The Court finds that the Complaint asserts broad

constitutional challenges that are not inextricably intertwined

with a review of the merits of the FAA's action in this case.

Foster v. Skinner, 70 F.3d 1084, 1087 (9th Cir. 1997). If the

Court were to agree with Frye, it is possible that the Court

might find it " just" to award monetary damages. Thus, the

Court concludes it has subject matter jurisdiction to address the

constitutional issues.

Frye also seeks this Court to enjoin the FAA from

suspending his pilot's certificate. This the district court cannot

address. 49 U.S.C. § 46110(a) vests exclusive [Page 5]

jurisdiction in the courts of appeals to review claims regarding

final agency actions by the FAA. Here, there is no final agency

decision as Frye is in the process of pursuing his administrative

remedies. Accordingly, the claim is not ripe for review, and if

it was, it must be appealed to the Ninth Circuit Court of

A-28

Appeals. Accordingly, the motion for preliminary injunction

shall be dismissed for lack of subject matter jurisdiction.

The Constitutional Challenges

Although this Complaint is brought on behalf of a plaintiff

who had his pilot's certificate suspended, it is being prosecuted

by Lawrence B. Smith, a lawyer who has brought numerous

similar cases against the FAA officials. In fact, Smith has made

his own adverse law in this area. See Foster v. Skinner, 70 F.3d

at 1086.

A review of the Complaint establishes that this case raises

identical arguments previously litigated unsuccessfully by

Smith in other cases. This case, and prior Smith litigation, has

been costly in terms of reliance by clients and time expended dy

public officials, government attorneys and the federal courts. ‘

This Court warned Smith of the possible ramifications of

pursuing identical claims which had been resolved against

Smith's clients in prior cases. For the reasons set forth below,

the Court is left with no option but to issue an order to show

cause why Smith should not be sanctioned for violation of Fed.

R. Civ. P. 11(b)(1) and (2) and Ethical Rules 3.1 and 3.3(a)(1),

28 U.S.C. § 1927 and this Court's February 21, 1997 Order.

A. Claim One: The Executive Branch Illegally Created

License Penalties

Smith argues that the FAA officials' contention that they

can impose certificate penalties because it is in the public

interest is an unconstitutional assertion of power. See Plaintiff's

Response to Motion to Dismiss ("Response") at 7. According

to Smith, the executive branch officials created punitive

certificate sanctions by using license Suspensions and

revocations as a "penalty" for the violation of air safety

regulations. This use of certificate actions, opines Smith, is

based on the erroneous claim Congress [Page6] authorized the

Administrator to suspend or revoke anytime he deems it to be

in the interest of air safety and the public. Smith argues that

there is no such authority so that in essence, the executive

branch created license penalties. Smith contends that "neither

the NTSB nor any court of appeals has ever addressed the

A-29

ee

i ie a ae an tr oy oS Uh ie ieee eo. Ta Bi ee Wades 9 or png nema

creation issue" and that "Congress may not delegate to an

administrative agency (or anyone) its authority to create benefits

or sanctions." Jd. According to Smith, the executive branch

officials created punitive certificate sanctions by using license

suspensions and revocations as a "penalty" for the violation of

air safety regulations. This use of certificate actions, opines

Smith, is based on the erroneous claim Congress [Page6]

authorized the Administrator to suspend or revoke anytime he

deems it to be in the interest of air safety and the public. Smith

argues that there is no such authority so that in essence, the

executive branch created license penalties. Smith contends that

"neither the NTSB nor any court of appeals has ever addressed

the creation issue" and that "Congress may not delegate to an

administrative agency (or anyone) its authority to create benefits

or sanctions." /d.

In support of these arguments, Smith relies on the

Administrative Procedure Act, which states in relevant part:

(a) This section applies, according to the provisions

thereof, to the exercise of a power of authority.

(b) A sanction may not be imposed or a substantive

rule or order issued except within jurisdiction

delegated to the agency and as authorized by law.

5. U.S.C. § 558. Smith argues that section 609 does not “hint”

at sanctions in the penalties and as such, the FAA is not

“authorize by law” to impose the same on pilots by revoking

their licenses for safety violations. Smith assert he “does not”

challenge Defendants’ claim under Sectionb 609.” Response at

6 (emphasis in original). Rather, he contends that the

Defendants have been successful in misdirecting the courts of

appeals who have addressed this issue to section 609.

According to Smith, the mistake began with Wilson v. Civil

Aeronautics Board, 244 F.2d 773 (D.C. Cir. 1957). According

to Smith, the government attorneys in Wilson argued in their

responding brief that section 3(f) of the Air Commerce Act of

1926, not section 609 of the Civil Aeronautics Act of 1938, was

A-30

the source of the suspension and revocation power of violations.

Because the Wilson defendants argued that [“t]here was no

Statutory specification of the grounds for revocation for

suspension or revocation, this being a matter obviously left for

the Secretary to establish” that the argument constitutes an

admission by the executive of the source of authority to impose

license penalties, According to Smith, {hJere, was the

government telling the court that 1938 had nothing to do with

[Page 7] creating the System under attack because it started in

1926, authorized by the Air Commerce Act, not the Civil

Aeronautics Act of 1938, which Section 609 is first found.”

Response at 6. Smith contends that the Wilson pilot’s lawyers

missed what the government attorneys were telling them, that

the relevant time frame for congressional intent was in 1926,

not 1938. /d. Because Defendants here admitted that the quote

was accurate, it is evidence of the executive’s [sic] branch’s

recognition of the true source of authority. See Admission No.

68. From this conclusion, argues Smith argues that Congress

never intended to authorize federal officials to impose punitive

certificate sanctions since section 3(f) of the 1926 Act contains

no language about “public interest” or “air safety.” Smith

contends that there is no legislative history for either the 1938

Act of [sic] the 1958 Act that explains what purpose Congress

had in mind for the “public interest and safety “ language relied

upon by the FAA and the courts of appeals.

The Court has reviewed these arguments and finds them

frivolous. Defendants characterize them as “semantic games"

and the Court agrees. Smith continues to ignore settled law in

this circuit, as well as in other circuits which preclude the

claims he continues to raise. It does not matter that the

government attorneys made that argument in the 1950s, courts

have interpreted later enactments as providing a present source

of authority regarding suspensions or revocations.

Pursuant to 49 U.S.C. § 44709 (1994), previously codified

as Section 609(a) of the Federal Aviation Act of 1958, as

amended, 49 U.S.C. § 1429(a) (1992)), the Administrator may:

A-3]

issue an order amending, modifying, suspending or

revoking . . . any part of a certificate issued under this

chapter if . . . the Administrator decides after conducting a

reinspection, reexamination, or other investigation that

safety in air commerce or air transportation and the public

safety requires that action...

49 U.S.C. § 44709(b)(1)(A)(1994) (emphasis added). The

implementing regulation [Page 8] provides in relevant part:

if as a result of such reinspection, reexamination, or other

investigation made by the Administrator under section 609

of the FA Act, the Administrator determines that the public

interest and safety in air commerce requires it, the

Administrator may issue an order amending suspending, or

revoking all or part of any... airman certificate .. ..

14 C.F.R. § 13.19 (1995)(emphasis added). The Ninth Circuit

has consistently upheld this law as constitutional and

permissible authority for the FAA to rely upon when it

suspends or revokes air certificates. See Foster v. Skinner, 70

F.3d 1084 (9th Cir. 1995); Roundtree v. United States, 40 F.3d

1036 (9th Cir. 1994);--Go Leasing, Inc. v. National Transp.,

800 F.2d 1514 (9th Cir. 1986). Similarly, other Courts of

appeals interpreting these regulations have found the Act the

FAA's procedures constitutional. See Dilley v. National Transp.

Safety Bd., 49 F.3d 667 (10 Cir. 1995); Knipe v. Skinner, 99

F.2d 708 (2d Cir. 1993); Hite v. National Transp. Safety Bd,

991 F.2d 17 (1st Cir. 1993); Rochna v. National Transp. Safety

Bd., 929 F.2d 13 (1st Cir.), cert. denied, 112 S.Ct. 305 (1991);

Hill v. National Transp. Safety Bd., 886 F.2d 1275 (10 Cir.

1989); Tearney v. National Transp. Safety Bd., 868 F.2d 1451

(Sth Cir.), cert. denied, 493 U.S. 937 (1989); Komjathy vy.

National Transp. Safety Bd., 832 F.2d 1294 (D.C. Cir. 1987),

cert. denied, 486 U.S. 1057 (1988).

Smith's claim that this issue has never been presented to the

courts by him are simply not true. The "executive branch

creation" claim was specifically argued and rejected by this very

A-32

Court in its June 6, 1995 opinion in Mace v. Skinner, CIV

91-676TUC-RMB, slip op. 8-9 (D.Ariz. 1995) ("Plaintiff

asserts that [the] FAA revocation policy is an illegal executive

branch-created penalty.") Similarly, the Honorable Carl A.

Muecke in Foster y. Skinner, CIV 92-557-PHX-CAM (D.Ariz.

1993) faced the same challenge in paragraph 35 of a Complaint

authored by Smith:

First Cause of Action

35. The suspension or revocation of pilot, mechanic or

operating certificate by the FAA asa penalty or sanction for

the violation of one [Page 9] or more FARs has never been

authorized by law. Only Congress may constitutionally

create penalties, sanctions, or benefits, that is, it may not

delegate its Article I, Section I, legislative authority to any

other branch of the government. The use of certificate

suspension an revocations as penalties is now and always

has been, since the federal government first initiated

regulation of aviation through the Air Commerce Act of

1926, a creation of the executive branch, not Congress.

Foster Complaint, at 1 35, March 25, 1992 (emphasis added).

Judge Muecke dismissed the Complaint and imposed Rule 1]

sanctions on Smith because Smith "personally knew--based on

his losses in the Ninth Circuit and in other courts of

appeals--knew that [ten of the thirteen claims] were not

grounded in law." The Ninth Circuit affirmed Judge Muecke's

decisions. See Foster, 70 F.3d at 1089. Defendants point to not

less than twelve district court cases and two circuit court cases

where Smith has raised his "executive-created penalty"

argument. See Defendants’ Reply in Support of their Motion to

Dismiss, p. 3 n.3. The Court's investigation has discovered

fifteen district court cases and three circuit decisions where

Smith raised the two claims presented today.!

| Those cases are: Tearney v. National Transportation Safety Board, 868

F.2d 1451 (Sth Cir.), cert denied, 493 U.S. 937 (1989); Mace y. Skinner,

(continued...)

A-33

Frye's second claim has also been resoundingly rejected by

the courts including this one. It is firmly established that the

APA does not require publication of the FAA's policy to

suspend or revoke certificates as a method of imposing

sanctions for violations of FARs. See Mace, slip op. 11-12

Foster, 70 F.3d at 1088-89; Rochna, 929 F. at 15-16; Tearney,

868 F.2d at 1454; Komjathy, 832 F.2d at 1296-97; Go Leasing,

800 F.2d at 1522-24; Dilley, 49 F.3d at 669-670; Dilley v.

Skinner, 48 F.3d 1231, 1995 WL 94703 (10th Cir. 1995)

(unpublished decision finding that "the FAA is not required to

[Page 10] separately promulgate or publish the rules.") Smith

continues to assert this claim even though he is all too aware of

case law to the contrary. This is particularly egregious since

Smith was counsel-of-record in Go-Leasing, Knipe and Dilley.

As unpalatable these cases must be, Smith must accept them. Is

a long established principle that Article III invests the courts

with the power to say what the law is." Marbury v. Madison, 5

U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). Accordingly,

those cases are the law.

The Court finds Smith's conduct particularly disturbing

since he averred to the Court that this case was distinguishable

from Mace v. Skinner, CTV 91-676-TUC-RMB. In Mace, the

plaintiff's aircraft mechanic license was revoked for violations

of the FARs. Mace was also represented by Smith. This Court

in Mace ultimately granted defendants’ motion to dismiss and

'(...continued)

CIV 91-676-TUC-RMB (D.Ariz. 1992), 34 F.3d 854 (9th Cir. 1994);

Foster v. Skinner, CIV 92-557-PHX-CAM (D.Ariz. 1993), 70 F.3d 1084

(9th Cir. 1995); Roundtree v. U.S., J92-029 CIV (D.Alaska 1992);

Roundtree v. Skinner, A91-566-CIV-JKS (D.Alaska 1993), 40 F.3d 1036

(9th Cir. 1994)(unpublished decision); Bellows v. Skinner, A91-565 CIV

(D.Alaska 1993), 42 F.3d 1398 (9th Cir. 1994) (unpublisheddecision);

Knipe v. Skinner,91-CV-1338-TJM (N.D.N.Y. 1991); Knipe v. United

States, 92-CV-1389-TJM-DNH (N.D.N.Y. 1993); Dilley v. Skinner,

91-NC1 19W (D.Utah 1991); Dilley v. United States,

92-NC-120W(D.Utah 1993), 16 F.3d 415 (10th Cir. 1994); Mace v.

United States, 92-750-TUC-WDB (D.Ariz. 1993), 42 F.3d 1400 (9th Cir.

1994) (unpublished decision).

A-34

entered a sanction against Smith requiring him to seek prior

court approval for any future lawsuit involving the FAA. See

Mace v. Skinner, CTV 91-676-TUC-RMB (D.Ariz. June 6,

1995). Smith ignored that Order and never formally sought

permission to file the present case.

At the January 28, 1997 hearing in the case at bar, the Court

specifically asked to distinguish Mace. Smith assured the Court

that:

Well, Mace against Skinner, number one, it's untrue that

Your Honor said I couldn't bring anymore such suits. It's

just in that case that you ordered the clerk not to accept

anymore pleadings. Any way by that time I was worn out

anyway and didn’t appeal it.

But the point — there s an absolute difference. One, you

might go through Mace against Skinner and say — I don't

remember specifically. That was an emergency revocation

case. It raised a lot of different issues.

Transcript of January 28, 1997 at 8:16-24. Based on Smith's

representations, the Court allowed discovery. After a careful

review of the complaints and pleadings, Smith's statements to

the Court were material misrepresentations which has cost the

present defendants time and money and wasted the finite

judicial resources of this Court. In Mace, Smith argued that

Mace's Fifth Amendment due process rights were violated

[Page 11] "because (1) the FAA has failed to formally

promulgate compliance disposition rules pursuant to the

procedures mandated by the APA; (2) the FAA has failed to

publish in the Federal Register its policy of imposing certificate

suspension or revocation as an alternative to a civil monetary

penalty; (3) the FAA policy is an impermissible executive

branch licensing penalty; and (4) the FAA's grant of emergency

power pursuant to 49 U.S.C. § 1429(a) and 1485(a) is

unconstitutional. Mace, slip op. at 3-4. Specifically, the Mace

complaint alleged:

A-35

———————————

FIRST CAUSE OF ACTION

32. The suspension or revocation of pilot, mechanic or

operating certificate by the FAA as a penalty or sanction for

the violation of one or more FARs has never been

authorized by law. Only Congress may constitutionally

create penalties, sanctions, or benefits, that iS, it may not

delegate its Article I, Section I, \egislative authority to any

other branch of the government. The use of certificate

suspensions and revocations as penalties is now and always

has been, since the federal government first initiated

regulation of aviation through the Air Commerce Act of

1926, a creation of the executive branch, not Congress.

Id., Complaint, § 32 (emphasis added). Mace also alleged:

FIFTH CAUSE OF ACTION

36. |The Federal Aviation Administration has never

promulgated a general rule that warns pilot, mechanic or

operator that his license is at risk for the violation of any

safety rule; nor a rule which advises that the Administrator

claims the power to decide in his absolute discretion to

have such charges tried administratively before the NTSB,

incurring suspension or revocation rather than in United

States District Court or, later in the CPDP program with the

only penalty a money fine. Agency failure to put such arule

in the Federal Aviation Regulations and cause it to be

published in the Code of Federal Regulations denied

plaintiff the right to have notice of such an important and

critical agency policy which can so drastically affect the

property right that an FAA certificate represents.

Id. at § 36 (emphasis added). Those two legal claims are

identical in every respect to the ones raised today. The fact that

Mace concerned an emergency revocation versus Frye's license

suspension is irrelevant. Mace set forth the case law in detail

recognizing the authority and the constitutional soundness of

A-36

a a eo.

the FAA to impose a revocation or suspension as a sanction. Id.

at slip op. 8-10. That decision also cited the circuit cases [Page

12] which found that the APA did not require publication in the

Federal Register or the Code of Federal Regulations. Id. at 11.

Mace, Foster, Mace, Roundtree, Rochna, Tearney,

Komjathy, Go-Leasing, Knipe and Dilley establish that Smith

knew his legal arguments in this case were "unwarranted by

existing law" and that they could not be considered

"nonfrivolous argument for the extension, modification, or

reversal of existing law" in violating of Fed. R. Civ. P. Il(b)(2).

Indeed, Smith has been sanctioned by district courts for his

obstinacy apparently without effect. See Foster, 70 F.3d at

1089; Roundtree, 40 F.3d at 1040; Knipe v. Skinner, 19 F.3d 72,

78 (2d Cir. 1994).

Under ER 3.1, "[a] lawyer shall not bring... a proceeding,

or assert or controvert an issue . . . unless there is a basis for

doing so that is not frivolous, which includes a good faith

argument for an extension, modification or reversal of existing

law." Rules of Professional Conduct, ER 3.1. A lawyer is

ethically obligation [sic] to exhibit candor to the court: "A

lawyer shall not knowingly, make a false statement of material

fact or law to a tribunal." ER 3.3(a)(1). Smith's conduct in this

case implicates both of those rules. Under Local Rule 1.6(a),

"[a]ny member of the bar of the Court may be disbarred or

otherwise disciplined after such hearing as the Court may in

each particular instance direct." The Court shall consider

application of Rule 1.6 to this case.

One final point, federal law provides:

Any attorney or other person admitted to conduct cases in

any court of the United States or any Territory thereof who

so multiplies the proceedings in any case unreasonably and

vexatiously may be required by the court to Satisfy

personally the excess costs, expenses, and attorneys fees

reasonably incurred because of such conduct.

28 U.S.C. § 1927. In light of the fact that the Court required

Smith to re-evaluate the merits of this case and he chose to

A-37

proceed, sanctions under 1927 may be appropriate.

Based on the foregoing, Smith shall be required to show

cause hearing as to why [Page 13] attorney should not be

sanctioned for violating Fed. R. Civ. P. 11(b)(1) and (2), Ethical

Rules 3.1 and 3.3(a)(1), 28 U.S.C. § 1927 and this Court's

February 21, 1997 Order. The Court will consider whether

action under Local Rule 1.6 and a complaint to the State Bar of

Arizona is appropriate. Smith is directed to address the

applicability of each of these violations in his brief. In response,

Defendants are to submit an accounting of their attorneys’ fees

to be considered as one of the appropriate sanctions.

Rule 54(d)(1) provides, in pertinent part, that "costs other

than attorneys’ fees shall be allowed as of course to the

prevailing party unless the court otherwise directs." A district

court must generally award costs pursuant to Fed. R. Civ. P.

54(d)(1) unless the prevailing party is guilty of some fault,

misconduct or default worthy of punishment. See National

Information Services, Inc. v. TRW, Inc. er al., 51 F.3d 1470 (9th

Cir. 1995). There being no just reason to deny costs in this case,

they shall be awarded to Defendants as the prevailing party.

IT IS ORDERED that Plaintiff's Motion for Preliminary

Injunction and Motion to Determine Sufficiency of Defendants’

Answers to Request for Admissions is DENIED WITH

PREJUDICE;

IT IS FURTHER ORDERED that Plaintiff's Motion for

Rule 11 Sanctions is DENIED;

IT IS FURTHER ORDERED that Defendants’ Motion to

Dismiss is GRANTED and judgment is hereby entered in favor

of Defendants Frederico Pena; Linda H. Daschle; Nicholas G.

Garaufis; Loretta Alkalay; and the National Transportation

Safely Board and against Plaintiff Timothy P. Frye;

IT IS FURTHER ORDERED that pursuant to Fed. R.

Civ. P. 54(d)(1), Plaintiff Timothy P. Frye shall be assessed

Defendants’ taxable costs. Defendants are directed to submit a

bill of taxable costs to the Clerk of the Court in accordance with

Local Rule 2.19;

[Page 14] IT IS FURTHER ORDERED that Lawrence P.

A-38

—

ee

Smith shall file a brief on or before June 2, 1997 why he should

not be disbarred from practicing in the District Court of

Arizona, why a State Bar Complaint should not be filed and

why he should not be sanctioned for violations of Fed. R. Civ.

P. 11, E.R. 3.1 and 3.3(a(1); 28 U.S.C. § 1927; and the Court's

February 21, 1997 Order. Any response is due July 7, 1997 and

any reply thereto, July 25, 1997;

IT IS FURTHER ORDERED that the sanctions hearing

is set for SEPTEMBER 15, 1997 AT 1:30 P.M.

DATED: MAY 19. 1997

s/Richard M. Bilby

Senior United States District Court [sic]

FILED FEBRUARY 21, 1997

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

TIMOTHY P. FRYE, Plaintiff

vs.

FREDERICO PENA, Secretary

Department of Transportation, et al.,

Defendants

NO. CIV 97-10 TUC RMB

ORDER

Defendants have filed a motion to have this Court

reconsider its decision to allow Plaintiff's counsel, Lawrence B.

Smith, Gary S. Grynkewich and Edward S. Coleman! discovery

| The Court is informed that Edward S. Coleman resigned from the

California State Bar while disciplinary charges were pending. On

February 4, 1997, Coleman was suspended from practice before this

federal bar. Therefore, Coleman is no longer an attorney in good

standing. Plaintiff's counsel are directed to remove his name from all

(continued...)

A-39

prior to ruling on Defendants’ motion to dismiss and hearing on

Plaintiffs motion for preliminary injunction. Defendants

contend that Plaintiffs request is burdensome since this

discovery entails 106 requests for admissions with subparts and

review of over 200 pages of documents to confirm or deny that

they are "genuine." Pursuant to Local Rule, a response to a

motion for reconsideration is not allowed unless ordered by the

Court. See Local Rule 1.10(f). After a review of the "Complaint

for Declaratory and Injunctive Relief" and "Motion for

Preliminary Injunction" and Defendants’ "Emergency Motion

for Reconsideration," the Court will grant reconsideration of its

order and stay discovery. Due to the unique facts in the case

which will be come apparent from below, the Court will not

allow a response.

[Page 2] After reviewing this Order and Plaintiff still

desires the requested discovery, he must post a bond. This bond

will insure that in the event Defendants prevail, there will be

sufficient funds to cover Defendants’ fees and costs. After said

bond is posted, the Court will set a new deadline for the request

for admissions.

II.

In this case, Plaintiff's air transport pilot certificate was

suspended 90 days because he repossessed a 747 [sic] aircraft

which was later found to be un-airworthy. He claims that the

suspension prevents him from obtaining employment with a

commercial airline. He is currently serving as a private pilot for

an Saudi Arabian sheik.

Frye claims in that (1) his Fifth Amendment due process

rights and were violated when the FAA relied on Section 609

of the Federal Aviation Act of 1958, 49 U.S.C. § 44709 (1994)

to suspend his license when there is no authority to do so and

(2) the FAA's failure to publish its interpretation of Section 609

violates the Administrative Procedures Act. The Court's initial

'(...continued)

future pleadings. If the Court's decision is based on misapprehension of

the facts, it will entertain an appropriate motion on the issue.

A-40

determination is that these issues have been litigated, and

litigated, and re-litigated by Plaintiff's present counsel,

Lawrence B. Smith.

Recently, the Ninth Circuit affirmed the district court's

order dismissing one of Smith's cases which arguably raises the

very issues presented here. In Foster v. Skinner, 33 F.3d 1084

(9th Cir. 1995) claims 1-9 asserted that the FAA lacked

authority to suspend or revoke pilot certificates for safety

violations and claims 5-8, 10 and 11 alleged that the FAA

violated the APA by not publishing rules regarding suspensions

and not giving Foster notice and an opportunity to comment on

the rules. Id. at 1087. Foster held that Go Leasing v. NTSB, 800

F.2d 1514 (9th Cir. 1986) and decisions in the First, Fifth,

Tenth and D.C. Circuit disposed of claims 1,2,3,4,5,6,7,8,10,

and 11.

With reference to the due process claim, Foster held "the

FAA Administrator's subordinates does not constitute a

violation of Foster’s due process rights because clear authority

establishes that the FAA Administrator, in his discretion, may

suspend and [Page 3] revoke pilot certificates." Id. at 1088

(citing Go Leasing v. NTSB, 800 F.2d 1514, 1523 (9th Cir.

1986); Dilley v. National Transp. Safety Bd., 49 F.3d 667 (10th

Cir. 1995); Tearney v. National Transp. Safety Bd., 868 F.2d

1451 (Sth Cir.), cert. denied, 493 U.S. 937 (1989) and

Komjathy v. National Transp. Safety Bd., 832 F.2d 1294 (D.C.

Cir. 1987), cert. denied, 486 U.S. 1057 (1988). "Moreover, 14

C.F.R. 13.19(b) (1995) provides that the FAA Administrator's

authority to suspend or revoke certificates may be exercised by

“the Chief Counsel for Regulations and Enforcement, and the

Assistant Chief Counsel for the region or the Aeronautical

Center." /d. Additionally, Dilley, decided before Foster. agreed

with the First, Fifth and District of Columbia Circuits when it

held in a case also litigated by Smith, that "the APA does not

require the FAA to promulgate a rule or to publish policy

stating that it may suspend a pilot's certificate for violations of

the Federal Aviation Regulations." Dilley, 49 F.3d at 670.

Moreover, Fifth amendment due process challenges to section

A-41

609 were raised and rejected in a prior Smith case before this

Court. See Mace v. Skinner, CIV 91-676 (Order of June 6,

1995).

Plaintiff's counsel are reminded that it is unethical for a

lawyer to "bring . . . a proceeding, or assert or controvert an

issue therein, unless there is a basis for doing so that is not

frivolous which includes a good faith argument for extension,

modification or reversal of existing law." See, Rule 3.1,

Arizona Rules of Professional Conduct. Accordingly, the Court

will allow the briefing to continue in order that counsel may

attempt to distinguish this case from all previous unsuccessful

cases.

Counsel is specifically directed to re-evaluate the present

case in light of prior circuit case law and to dismiss it under

Fed. R. Civ. P. 41(a)(2) without fear of court sanctions, if

appropriate. If, however, Counsel chooses to pursue this case

and the Court grants Defendants’ motion to dismiss, the Court

will enter sanctions which may include monetary sanctions and

a complaint filed with the State Bar of Arizona.

|Page 4] Ll.

Accordingly,

IT IS ORDERED that:

(1) Defendant's Emergency Motion for Reconsideration is

GRANTED and all discovery STAYED until the Court rules on

Defendants’ motion to dismiss;

(2) Discovery may proceed if Plaintiff's Counsel posts a

bond in the amount of $20,000 with the Clerk of the Court;

[Sic](4) If Defendants prevail on the motion to dismiss, the

Court will consider entering sanctions which may include

monetary sanctions as well as a State Bar Complaint;

(5) To avoid court-sanctions, counsel Lawrence B. Smith

and Gary S. Grynkewich have until MARCH 3, 1997 to dismiss

this matter under Fed. R. Civ. P.41(a)(2).

DATED: February 21, 1997

s/Richard M. Bilby

Senior United States

District Court [sic]

A-42

SER E LS TEE LLL SCT NET TE NT ODN ET IEEE RESETS ELOY INDE LETS 2 ETE LEE TER TMA S EBLE TREES

[FILED JAN. 6, 1997]

Gary S. Grynkewich

Whitehill, Linden, Grynkewich & Halladay, P.C.

5210 E. Williams Circle, Suite 500

Tucson AZ 85711

520/745-8000

Ariz. Bar # 004105

Edward S, Coleman

1900 E. Flamingo, Ste 296

Las Vegas NV 89119

702/699-9000

Lawrence B. Smith

3938 E. Grant Rd., #402

Tucson AZ 85712-2555

520/326-0283

Ariz. Bar #000968

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CIV 97-10 TUC RMB

TIMOTHY P. FRYE,

Plaintiff,

FREDERICO PENA, Secretary

Department of Transportation,

LINDA H. DASCHLE, Acting Admin-

stator, Federal Aviation Administration,

NICHOLAS G. GARAUFIS, Chief Counsel, Federal Aviation

Administration,

LORETTA E. ALKALAY, Assistant

Chief Counsel, Eastern Region, Federal

A-43

Aviation Administration,

NATIONAL TRANSPORTATION

SAFETY BOARD,

Defendants.

COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF

[Page two] Plaintiff Timothy P. Frye, complains and alleges:

JURISDICTION

1. This is a civil action which seeks declaratory and injunctive

relief. Jurisdiction arises under 28 U.S.C. § 1331. Such relief is

authorized by 28 U.S.C. §§ 2201 & 2202. The scope of judicial

review of wrongful federal agency action is mandated by the

Administrative Procedure Act (APA), 5 U.S.C. §§ 702-706.

PARTY PLAINTIFF

2. Timothy P. Frye is a resident of Pima County, State of

Arizona.

PARTIES DEFENDANT

3. Frederico Pena, who may be found in Washington, D.C., is

Secretary, Department of Transportation (DOT).

4. Linda H. Daschle, who may be found in Washington, D.C.,

is Acting Administrator, Federal Aviation Administration

(FAA). .

5. Nicholas G. Garaufis, who may be found in Washington,

D.C., is Chief Counsel, Federal Aviation Administration.

6. Loretta Alkalay, who may be found in Jamaica, New York,

is Assistant Chief Counsel, Eastern Region, Federal Aviation

Administration.

7. The National Transportation Safety Board may be found in

Washington, D.C.

BACKGROUND ALLEGATIONS

8. Timothy P. Frye (Capt. Frye), presently and at all times

relevant to the issues herein, has held an FAA Air Transport

Pilot (ATP) certificate. Under date of February 16, 1996 he was

served by the FAA Eastern Region with a Notice of Proposed

Certificate Action (NOPCA). It proposed to suspend his ATP

for a period of 180 days on account of certain alleged violations

A-44

of the Federal Aviation Regulations (FARs), which may be

found in the Code of Federal Regulations, 14 CFR Pts 1-199.

The charges centered around the claim that he had operated an

unairworthy aircraft.

9. After an informal conference between his counsel and the

FAA's, he received under date of October 18, 1996 an Order of

Suspension that ordered his ATP suspended for a period of 90

days. The order was issued under the name and authority of

defendant Loretta E. Alkalay, with [Page 3] her authority

delegated from the FAA Administrator. It has been appealed to

the National Transportation Safety Board (NTSB) fora hearing

(trial) on the merits of the charges.

10. The event out of which the violation charges arose occurred

in the early morning hours of October 7, 1995 at Pittsburgh

International Airport. With a co-pilot, he repossessed a Boeing

B-737 aircraft and depaed with it for Tucson, Arizona.

11. That aircraft, and one other 737, had been subleased by

Viscount Air Services, Inc. of Tucson to Nation's Air, a

scheduled aircarrier headquartered in Atlanta, Georgia (a mini-

Valu-Jet). As Viscount's chief pilot, Capt. Frye oversaw the

operation, not including Nation's, of eleven 737s and two 727s

used in charter for sports teams and casinos.

12. Nation's Air was in serious default on its monthly lease

payments for the two 737s in the approximate amount of $

200,000. Moreover, Nation's Air, without Viscount's required

approval, had placed one aircraft in Dallas, Texas at a repair

facility for costly heavy maintenance, rather than Viscount's

choice of facility. So a decision was made to repossess the one

operating aircraft at Pittsburgh. After arriving at the airport,

armed with papers showing Viscount's legal right to repossess

the aircraft, Capt. Frye cleared his mission with the airport

manager. Then, accompanied by an airport police officer, he

proceeded to the aircraft where it had been parked after a

midnight arrival. After walk-around, while his co-pilot pre-

flighted the cockpit, he checked the aircraft logs for any

airworthiness discrepancies written up by the previous captain

that would have rendered the aircraft unairworthy. F inding

A-45

none, at about 3:30 o'clock a.m. he fired up the engines and

departed for Cleveland, Ohio to refuel for the leg to Tucson.

13. The repossession made press and radio in Pittsburgh and

Atlanta, including USA Today. The FAA was asked how,

during a Level III security alert (next to highest), someone

could walk out to an airliner at a major airport and drive off

wit it.

14. At an unknown time subsequent to Capt. Frye's departure,

twe Nation's Air mechanics got together with an FAA inspector

and reported that Frye had taken off with the 737 in an

unairworthy condition. From this arose the three principal

charges contained in the NOPCA: “(a) the APU had excessive

AMP draw on startup; (b) the #1 CSD needed servicing; and (c)

the left outboard landing light was missing a bulb and was

thereby inoperative."

15. Charges (a) and (b) were facially false, (c) was unrelated to

airworthiness. So obvious [Page 4] was their falsity, charges (a)

and (b), as a result of the informal conference when this was

brought to the attention of FAA lawyers, were dropped from the

Order of Suspension.' The missing lightbulb remained the

single charge of unairworthiness.

16. At all times relevant to the allegations and claims made

herein defendant DOT Secretary Frederico Pena had overall

responsibility for that agency's various modalities, including the

FAA. The FAA Administrator was and is directly responsible

by law, and by delegation of authority from the DOT Secretary,

| Auxiliary Power Unit. A small jet engine, when the aircraft is on the

ground it is used to power lights, airconditioning, instruments, and start

the engines. The charge is facially false because the APU ammeter,

shoving current draw from the batteries, will always peg full-over, so

there is no way to tell in the cockpit it is drawing too many amps.

Constant Speed Drive. It is a fluid-drive that interfaces between the

geneator and the extremely high RPM main-engine jet turbine to keep

the Hrmer at a much slower and constant speed. "Servicing" means it

neeced oil. To find that out a mechanic would have to undo at least eight

fasterers on the cowling, then secure it open. No mechanic would do that

and 1ot immediately go get the needed oil, add it, then close the cowling.

A-4

for all FAA actions.

17. At all times relevant to the allegations and claims made

herein defendants FAA Chief Counsel Nicholas G. Garaufis

and Assistant Chief Counsel Loretta E. Alkalay had the

responsibility and authority delegated from the Administrator

to initiate enforcement actions and to order suspension and

revocation of airman certificates.

18. At all times relevant to the allegations and claims made

herein defendant National Transportation Safety Board had the

statutory duty to review FAA orders of suspension and

revocation of airmen certificates.

CLAIMS FOR RELIEF

FIFTH AMENDMENT RIGHT TO DUE PROCESS

19. The use of a license suspension to punish Capt. Frye for an

alleged violation of the Federal Aviation Regulations violated

his fifth amendment right not to be deprived of life, liberty or

property without due process of law, on the following grounds:

FIRST CAUSE OF ACTION

20. The FAA's claim of authority to punish an airman for the

alleged violation ofa safety regulation by suspending his pilot's

license is based on Section 609 of the Federal Aviation Act

[Page 5] of 1958 (FA Act), as amended. The contention is that

certain language in that section authorizes the FAA

Administrator to suspend or revoke certificates anytime he

deems “that safety in air commerce or air transportation and the

public interest requires . . .”

21. Based upon this vague language federal aviation officials

decided that it was in the interests of air safety to impose

suspensions and revocations on certificate holders as

punishment for safety violations—obviously figuring that no

one could argue with the logic of that. This, even though no

language is contained in Section 609 that so much as hints at a

connection between the commission of a safety violation and

suspension or revocation of a pilot's license, or any other

certificate; no words, such as, “regulation,” “violation,”

“sanction,” or “penalty.”

22. Thus, based on these officials' own statutory interpretation,

A-47

logic dictates that the executive branch of the federal

government, not the Congress, created certificate penalties. It is

fundamental under Article I, § 1, of the Constitution that only

the legislative branch of the federal government, not the

executive, may create penalties, or benefits, i.e. food stamps.

Thus the imposition upon Capt. Frye of a suspension of his

pilot's license as a penalty for alleged air-safety violations

violated his Fifth Amendment right to due process.

SECOND CAUSE OF ACTION

23. Although they have claimed authority to impose license

penalties for almost four decades, FAA officials have never

given the public any notice of this in the Code of Federal

Regulations — or any other official federal publication — that

they make such a claim. This failure to tell airmen, including

Capt. Frye, that their licenses are at risk for the violation of a

safety rule violated his Fifth Amendment right to due process.

RELIEF REQUESTED

WHEREFORE, plaintiff prays for the following relief:

1. Ajudgment that declares plaintiff's constitutional rights have

been violated. ae

2. For a permanent injunction enjoining defendants from further

pursuing the certificate action initiated against plaintiff.

3. Pending final hearing and determination hereof, that a

preliminary injunction or other appropriate writ be issued

ordering defendants to cease and desist from further pursuing

the certificate action against plaintiff. [Page 6]

4. That upon final hearing and determination hereof said

preliminary injunction or other writ be made permanent.

5. For costs and such attorney fees as are allowed by law.

6. For such other and further relief as the Court may deem just

and equitable.

Respectfully submitted,

ATTORNEYS FOR PLAINTIFF

Gary S. Grynkewich

Whitehill, Linden, Grynkewich

A-48

& Halladay, P.C.

Edward S. Coleman

Lawrence B. Smith

VERIFICATION

I, Lawrence B. Smith, one of the attorneys for plaintiff

herein, verify under penalty of perjury that the contents of the

foregoing complaint are true and correct, and as to those things

alleged upon information and belief I believe them to be true.

Executed: January 6, 1996

Lawrence B. Smith

Fed.R.Civ.P.11

Rule 11. Signing of Pleadings, Motions and Other Papers,

Representations to Court; Sanctions

(a) Signature. Every pleading, written motion, and other

paper shall be signed by at least one attorney of record in the

attorney’s individual name, or, if the party is not represented by

an attorney, shall be signed by the party. Each paper shall state

the signer’s address and telephone number, if any. Except when

otherwise specifically provide by rule or statute, pleadings need

not be verified or accompanied by affidavit. An unsigned paper

shall be stricken unless omission of the signature is corrected

promptly after being called to the attention of the attorney or

party.

(b) Representations to Court. By presenting to the court

(whether by signing, filing, submitting, or later advocating) a

pleadings, written motion, or other paper, an attorney or

unrepresented party is certifying that to the best of the person’s

knowledge, information, and belief, formed after an inquiry

reasonable under the circumstances, —

(1) it is not being presented for any improper purpose, such

as to harass or to cause unnecessary delay or needless increase

A-49

in the cost of litigation;

(2) the claims, defenses, and other legal contention therein

are warranted by existing law or the establishment of new law;

(3) the allegations and other factual contentions have

evidentiary support, or after a reasonable opportunity for further

investigation or discovery; and

(4) the denials of factual contentions are warranted on the

evidence or, of specifically so identified, are reasonable based _

on a lack of information or belief.

(c) Sanctions. If, after notice and a reasonable opportunity

to respond, the court determines that subdivision (b) has been

violated, the court may, subject to the conditions stated below,

impose an appropriate sanction upon the attorneys, law firms,

or parties that have violated subdivision (b) or are responsible

for the violation.

(1) How initiated.

(A) By Motion. A motion for sanctions under the pee shall

be made separately from other motions or requests and shall

describe the specific conduct alleged to violate subdivision (b).

It shall be served as provided in Rule 5, but shall not be filed

with or presented to the court unless, within 21 days after

service of the motion (or such other period as the court may

prescribe), the challenged paper, claim, defense, contention,

allegation, or denial is not withdrawn or appropriately

corrected. If warranted, the court may award to the party

prevailing on the motion the reasonable expenses and attorney’s

fees incurred in presenting or opposing the motion. Absent

exceptional circumstances, a law firm shall be held jointly

responsible for violations committed by its partners, associates,

and employees.

(B) On Court’s Initiative. On its own initiative, the court

may enter an order describing the specific conduct that appears

to violate subdivision (b) and directing an attorney, law firm, or

party to show cause why it has not violated subdivision (b) with

respect thereto.

(2) Nature of Sanction; Limitations. A sanction imposed

for violation of this rule shall be limited to what is sufficient to

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deter repetition of such conduct or comparable conduct by

others similarly situated. Subject to the limitations in

subparagraphs (A) and (B), the sanction may consist of, or

include, directives of a nonmonetary nature, an order to pay a

penalty into court, or, if imposed on motion and warranted for

effective deterrence, an order directing payment to the movant

of some or all of the reasonable attorneys’ fees and other

expenses incurred as a direct result of the violation.

(A) Monetary sanctions may not be awarded against a

represented party for a violation of subdivision (b)(2).

(B) Monetary sanctions may not be awarded on the court’s

initiative unless the court issues its order to show cause before

a voluntary dismissal or settlement of the claims made by or

against the party which is, or whose attorneys are, to be

sanctioned.

(3) Order. When imposing sanctions, the court shall

describe the conduct determined to constitute a violation of this

rule and explain the basis for the sanction imposed.

(d) Inapplicability to Discovery. Subdivisions (a) through

(c) of this rule do not apply to disclosures and discovery

requests, responses, objections, and motions that are subject to

the provisions of Rules 26 through 37.

(As amended Apr. 22, 1993, eff. Dec. 1, 1993.)

Fed.R.Civ.P.12(b)(6) — Every defense, in law or fact, to aclaim

for relief in any pleading, whether a claim, counterclaim, cross-

claim, or third-party claim, shall be asserted in the responsive _

pleading thereto if one is required, except the following

defenses may at the option of the pleader by made by motion:

(1) lack of jurisdiction over the subject matter, (2) lack of

jurisdiction over the person, (3)- improper venue, (4)

insufficiency of process, (5) insufficiency of service of process,

(6) failure to state a claim upon which relief can be granted, (7)

failure to join a party under Rule 19. A motion making any of

these defenses shall be made before pleading if a further

pleading is permitted. No defense or objection is waived by

being joined with one or more other defenses or objections in

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a responsive pleading or motion. If a pleading sets forth a claim

for relief to which the adverse party is not required to serve a

responsive pleading, the adverse party may assert at the trial any

defense in law or fact to that claim for relief. If, on a motion

asserting the defense numbered (6) to dismiss for failure of the

pleading to state a claim upon which relief can be granted,

matters outside the pleading are presented to and not excluded

by the court, the motion shall be treated as one for summary

judgment and disposed of as provided in Rule 56, and all

parties shall be given a reasonable opportunity to present all

material made pertinent to such a motion by Rule 56.

Administrative Procedure Act

5 U.S.C. § 551 — Definitions

For the purpose of this subchapter —

(1) "agency" means each authority of the Government of the

United States, whether or not it is within or subject to review by

another agency, but does not include * * * *

(4) "rule" means the whole or a part of an agency statement

of general or particular applicability and future effect designed

to implement, interpret, or prescribe law or policy or describing

the organization, procedure, or practice requirements of an

agency * * *

5 U.S.C. § 552(a)(1) — Public information; agency rules,

opinions, orders, records, and proceedings

(a) Each agency shall make available to the public informa-

tion as follows:

(1) Each agency shall separately state and currently publish

in the Federal Register for the guidance of the public —

(A) descriptions of its central and field organization and the

established places at which, the employees (and in the case of

a uniformed service, the members) from whom, and the

methods whereby, the public may obtain information, make

submittals or requests, or obtain decisions;

(B) statements of the general course and method by which

A-52

its functions are channeled and determined, including the nature

and requirements of all formal and informal procedures

available;

(C) rules of procedure, descriptions of forms available or

the places at which forms may be obtained, and instructions as

to the scope and contents of all papers, reports, or examina-

tions;

(D) substantive rules of general applicability adopted as

authorized by law, and statements of general policy or

interpretations of general applicability formulated and adopted

by the agency; and

(E) each amendment, revision, or repeal of the foregoing.

Except to the extent that a person has actual and timely

notice of the terms thereof, a person may not in any manner be

required to resort to, or be adversely affected by, a matter re-

quired to be published in the Federal Register and not so publ-

ished. For the purpose of this paragraph, matter reasonably

available to the class of persons affected thereby is deemed

published in the Federal Register when incorporated by

reference therein with the approval of the Director of the

Federal Register.

5 U.S.C. § 553 — Rule making

(a) This section applies, according to the provisions thereof,

except to the extent that there is involved —

(1) a military or foreign affairs function of the United

States; or

(2) a matter relating to agency management or personnel or

to public property; loans, grants, benefits, or contracts.

(b) General notice of proposed rule making shall be

published in the Federal Register, unless persons subject thereto

are named and either personally served or otherwise have actual

notice thereof in accordance with law. The notice shall include

(1) a statement of the time, place, and nature of public rule

making proceedings; —

A-53

(2) reference to the legal authority under which the rule is

proposed; and

(3) either the terms or substance of the proposed rule or a

description of the subjects and issues involved.

Except when notice or hearing is required by statute, this

subsection does not apply --

(A) to interpretative rules, general statements of policy, or

rules of agency organization, procedure, or practice; or

(B) when the agency for good cause finds (and incorporates

the finding and a brief statement of reasons therefor in the rules

issued) that notice and public procedure thereon are imprac-

ticable, unnecessary, or contrary to the public interest.

(c) After notice required by this section, the agency shall

give interested persons an opportunity to participate in the rule

making through submission of written data, views, or

arguments with or without opportunity for oral presentation.

After consideration of the relevant matter presented, the agency

shall incorporate in the rules adopted a concise general

statement of their basis and purpose. When rules are required by

statute to be made on the record after opportunity for an agency

. hearing, sections 556 and 557 of this title apply instead of this

subsection.

(d) The required publication or service of a substantive rule

shall be made not less than 30 days before its effective date,

except --

(1) a substantive rule which grants or recognizes an

exemption or relieves a restriction;

(2) interpretative rules and statements of policy; or

(3) as otherwise provided by the agency for good cause

~ found and published with the rule.

(e) Each agency shall give an interested person the right to

petition for the issuance, amendment, or repeal of a rule.

5 U.S.C. § 558 — Imposition of sanctions,; determination of

applications for licenses; suspension, revocation, and

expiration of licenses

A-54

\

(a) This section applies, according to the provisions thereof,

to the exercise of a power or authority.

(b) A sanction may not be imposed or a substantive rule or

order issued except within jurisdiction delegated to agency and

as authorized by law. * * * *

5_U.S.C. § 706 — Scope of review

To the extent necessary to decision and when presented, the

reviewing court shall decide all relevant questions of law, inter-

pret constitutional and statutory provisions, and determine the

meaning or applicability of the terms of an agency action. The

reviewing court shall

(1) compel agency action unlawfully withheld or unreas-

onably delayed; and

(2) hold unlawful and set aside agency action, findings, and

conclusions found to be --

(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or im-

munity;

(C) in excess of statutory jurisdiction, authority, or limitat-

ions, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to

sections 556 and 557 of this title or otherwise reviewed on the

record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are

subject to trial de novo by the reviewing court. In making the

foregoing determinations, the court shall review the whole

record or those parts of it cited by a party, and due account shall

be taken of the rule of prejudicial error.

28 U.S.C. § 1927 — Any attorney or other person admitted to

conduct cases in any court of the United States or any Territory

thereof who so multiplies the proceedings in any case

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unreasonably and vexatiously may be required by the court to

satisfy personally the excess costs, expenses, and attorneys’ fees

reasonably incurred because of such conduct.

FEDERAL AVIATION ACT OF 1958, Section 609

PUBLIC LAW 85-726-AUG. 23,1958,

72 Stat. 779-80

The Administrator may, from time to time, reinspect any

civil aircraft, aircraft engine, propeller, appliance, air navigation

facility, or air agency, or may reexamine any civil airman. If, as

a result of any such reinspection or reexamination, or if, as a

result of any other investigation made by the Administrator, he

determines that safety in air commerce or air transportation and

the public interest requires, the Administrator may issue an

order amending, modifying, suspending, or revoking, in whole

Or in part, any type certificate, production certificate,

airworthiness certificate, airman certificate, air carrier operating

certificate, air navigation facility certificate, or air agency

certificate. [What follows not relevant to any issue herein.]

Prior to amending, modifying, suspending, or revoking any of

the foregcing certificates, the Administrator shall advise the

holder thereof as to any charges or other reasons relied upon by

the Administrator for his proposed action and, except in case of

emergency, shall provide the holder of such certificate an

opportunity to answer any charges and be heard as to why such

certificate should not be amended, modified, suspended, or

revoked. Any person whose certificate is affected by such an

order of the Administrator under this section may appeal the

Administrator’s order to the Board and the Board may, after

notice and hearing, amend, modify, or reverse the

Administrator’s order if it finds that safety in air commerce and

the public interest do not require affirmation of the

Administrator’s order. In the conduct of its hearings the Board

shall not be bound by findings of fact of the Administrator. The

filing of an appeal with the Board shall stay the effectiveness of

the Administrator’s order unless the Administrator advises the

A-56

ene

Board that an emergency exists and safety in air commerce or

air transportation requires the immediate effectiveness of this

order, in which event the order shall remain effective and the

Board shall finally dispose of the appeal within sixty days after

being so advised by the Administrator. The person substantially

affected by the Board’s order may obtain judicial review of said

order under the provisions of section 1006, and the

Administrator shall be made a party to such proceedings.

72 Stat. 783

§ 901(a)(1} (pertinent parts):

(a)(1) Any person who violates (A) any provision of titles

Ill, V, VI, VII, or XIII of this Act, or any rule, regulation or

order issued thereunder * * * shall be subject to a civil penalty

of not to exceed $1,000 for each such violation * * *

(2) Any such civil penalty may be compromised by the

Administrator in the case of violations of titles IT] , V, VI, or XII

or any rule regulation, or order issued thereunder * * *

72 Stat. 786, § 903(b)(1) (pertinent parts):

(b) Procedure in respect of civil penalties

(1) Any civil penalty imposed or assessed under this

chapter may be collected by proceedings in personam against

the person subject to the penalty .. . Such proceedings shall

conform as nearly as may be to civil suits in admiralty .. . [and]

either party may demand trial by jury of any issue of fact, if the

value in controversy exceeds $20, and the facts so tried shall

not be reexamined other than in accordance with the rules of the

common law.

a ee SN EY SSAA. Sa Ses

EXHIBITS

FRANK W. HUNGER

Assistant Attorney General

JANET NAPOLITANO

United States Attorney

MONTE CLAUSEN

State Bar No. 002420

Assistant U.S. Attorney

Acapulco Building, Suite 8310

110 South Church Avenue

Tucson, Arizona 85701

SANDRA M. SCHRAIBMAN

LUCINDA A. LOVE

Attorneys

Civil Division, Federal Programs Branch

U.S. Department of Justice

901 E Street, N.W., Room 1024

Washington, D.C. 20004

Telephone: (202) 514-2337

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

FILED MAY 20, 1997

Civil Action

No. CV-97-10-TUC-RMB

TIMOTHY P. FRYE, Plaintiff,

v.

FREDERICO PENA, Secretary, Department

of Transportation, et al, Defendants.

DEFENDANTS' MEMORANDUM IN SUPPORT OF

THEIR MOTION TO DISMISS AND RESPONSE

IN OPPOSITION TO PLAINTIFF'S MOTION

FOR A PRELIMINARY INJUNCTION

Introduction

This lawsuit raises claims that are substantially identical to

claims previously raised by one of plaintiff's counsel in

numerous lawsuits. Because plaintiff's counsel has not won any

claim in any prior lawsuit and has instead been subject to

sanctions for continuing to press losing arguments, requiring

A-58

- defendants to respond to any discovety requests prior to the

Court's decision on the motion to dismiss would be inconsistent

with established law and with fairness. Nothing in the requests

for admission will assist the Court in making its determination

on defendants’ motion to dismiss. Instead it will reward

plaintiff's counsel for continuing to harass the FAA and NTSB

with frivolous claims and for tying up the time of numerous

courts.

The United States Court of Appeals for the Ninth Circuit

and at least four other Circuit Courts have specifically held that

the Federal Aviation Administration ("FAA") has authority

under the Federal Aviation Act ("FA Act"), 49 U.S.C. §§ 40101

et _seq., to revoke or suspend pilots’ licenses for safety

violations. Case law also holds that there is no due process

violation caused by the alleged failure of the FAA to publish its

stated authority to suspend pilots.-Despite the established law

of this Circuit and the issuance of sanctions against one of

plaintiff's counsel for repeatedly pressing his contrary

interpretation of the Act, plaintiff seeks to short-circuit the

administrative process set.up by Congress in the Federal

Aviation Act for determining whether to suspend for ninety

days plaintiff's pilotis license. Instead of awaiting the National

Transportation Safety Board's decision on plaintiff's appeal of

the FAA suspension order, plaintiff asks this Court to enjoin

further agency action and ignore Ninth Circuit jurisprudence in

doing so. Plaintiff's characterization of this challenge as an

Administrative Procedure Act/Fifth Amendment Due Process

Clause challenge, as opposed to the earlier Bivens Act and

Federal Torts Claims Act litigation brought in this Circuit, does

not change the underlying legal reality that has been

unequivocally recognized by the Ninth and other Circuits: the

FA Act provides the statutory authority for the action under

challenge here and also provides rights which satisfy

constitutional due process requirements.

Accordingly, this action should be dismissed. First, plaintiff

has filed this action prematurely, during the pendency of his

administrative appeal which could conceivably result in setting

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aside the suspension order and thus eliminate any need for

judicial review. Second, the traditional deference accorded an

agency's interpretation of its statutory authority is here not just

bolstered, but affirmed, by the Ninth Circuit's earlier holding

that the Act does in fact authorize administrative actions of the

type at issue here. Whether plaintiff will have, upon completion

of the administrative process, some other APA or Fifth

Amendment challenge remains to be seen. But it is clear, here

and now, that the plaintiff's attempt to stop the administrative

process in its tracks must fail. The utter refusal of overzealous

counsel to accept the law as it is should not be countenanced.

For the same reasons, plaintiff's motion for preliminary

injunctive relief must fail. Not only does plaintiff lack any

likelihood that he will succeed on the merits, he cannot show

the irreparable injury necessary to support a preliminary

i\junction He continues to fly, since his appeal to the NTSB has _

stayed the FAA suspension order. Nor has he established

irreparable injury by his expressed interest in applying to

another airline during the pendency of this lawsuit, and by his

speculation that such airline will be uninterested in him given

the administrative process. Nothing stops him from applying,

and a preliminary injunction will not erase the safety violation

which gave rise to the FAA action, nor will it preclude the

possibility that the suspension will ultimately be imposed.

Further, the public interest tips in favor of completion of the

administrative process. An injunction would frustrate the

purpose of the Federal Aviation Act as mandated by Congress

and would therefore, disserve the public interest.

Statutory and Regulatory Background

The Federal Aviation Act of 1958 ("FA Act") describes

"assigning and maintaining safety as the highest priority in air

commerce."49 U.S.C. § 40101(a)(1) (1996).' The Act

authorizes the Administrator of the Federal Aviation

1 In 1994, Congress recodified the Act without substantive change at 49

U.S.C. §§ 40101 et seq. See Pub. L. No. 103-272, 103 Stat. 745, 1093

(1994). All references will be to the recodified Code sections.

A-60

Le

Administration ("FAA") to prescribe air safety standards in

order to "promote safe flight of civil aircraft in air commerce."

49 U.S.C. § 44701(a).

The FA Act empowers the Administrator to issue “airman

certificates," 49 U.S.C. § 44702(a), containing such terms as

"the Administrator decides are necessary to ensure safety in air

commerce," 49 U.S.C. § 44703(b)(1)(C). "Airman certificates"

authorize individuals to serve as, inter alia, pilots, aircraft

mechanics, or flight crew members. 49 U.S.C. § 40102(a)(8).

Pursuant to 49 U.S.C. § 44709(a), the Administrator "may

* * * at any time * * * reexamine an airman" to whom an

aviation certificate was previously issued. After such a

reexamination or other investigation, the Administrator is

empowered to issue orders "amending, modifying, suspending,

or revoking * * * any part" of an aviation certificate previously

issued if the Administrator determines that "safety in air

commerce or air transportation and the public interest require

that action. 49 U.S.C. § 44709(b)(1)(A). Prior to taking any

such action, the Administrator must advise the certificate holder

of "the charges or other reasons on which the Administrator

relies for the proposed action," and, " [e}xcept in an emergency,"

provide an opportunity to answer the charges. 49 U.S.C. §

44709(c).

The affected airman may file an administrative appeal to the

National Transportation Safety Board ("NTSB"), 49 U.S.C. §

44709(d)(1), which stays the effectiveness of the [Page 6]

Administrator's order, 49 U.S.C. § 44709(e). The NTSB may

alter the Administrator's decision "[a]fter notice and an

opportunity for a hearing" if, inter alia, the Board finds "that

2 This appeal is actually a two-step process. First, the airman appeals to

the Office of Administrative Law Judges at the NTSB. He is given notice

and an opportunity for a hearing. After that, the judge issues an initial

decision from whict. either side may appeal. If neither party appeals, that

decision becomes final. If there is an appeal, that appeal is taken to the

five-member NTSB. That Board may alter, amend, modify, or reverse the

decision of the ALJ. After that decision, either side may appeal to the

court of appeals. See 49 C.F.R. part 821.47.

A-61

safety in air commerce or air transportation and the public

interest do not require affirmation of the order." 49 U.S.C. §

44709(d)(1)(A). In addition, "[t]he Board may modify a

suspension or revocation of a certificate to imposition of a civil

penalty.” 49 U.S.C. § 44709(d)(2).

"A person substantially affected by an order of the Board"

may file a petition for review in the federal courts of appeals

within 60 days after the order has issued. 49 U.S.C. § 44709(f);

see also 49 U.S.C. § 46110(a). The courts of appeals have

"exclusive jurisdiction to affirm, amend, modify, or set aside

any part of the order and may order the Secretary or

Administrator to conduct further proceedings." 49 U.S.C. §

46110(c).?

Statement of Facts

Plaintiff Timothy P. Frye is the holder of an airline transport

pilot's certificate. Compl. 4 8. This certificate entitles him to

carry passengers or cargo for hire. On February 16, 1996, the

Federal Aviation Administration notified plaintiff by mail that

it proposed suspending his pilot's certificate for a period of 180

days for violating certain Federal Aviation Regulations. On

Sept 17, 1996, an informal conference was held between

plaintiff and the KAA. Pursuant to that conference, the FAA

dismissed several charges against plaintiff and the proposed

sanction was decreased from 180 days to 90 days. On October

18, 1996, the Federal Aviation Administration issued plaintiff

an order suspending his commercial pilot certificate for a period

of 90 days. Jd. at § 9. The suspension order charged that

plaintiff had violated a number of Federal Aviation

Regulations* (FARs) by operating an unworthy aircraft and by

operating an aircraft in a careless or reckless manner when he

was piloting a Boeing B737 on October 7, 1995, on a flight

3 The National Transportation Safety Board should be dismissed as a

defendant as the plaintiff completely fails to make any allegations of fact

against the NTSB. See Compl.

4 See generally 14 C.F.R. Parts | et. seq.

A-62

Ce ee ee ee ee ey ee ee ae ee

from Pittsburgh, Pennsylvania to Tucson, Arizona. According

to the Order of Suspension, the FAA Administrator, on whose

behalf the order was issued, had determined that both public

interest and safety in air commerce required the suspension of

the plaintiff's commercial pilot certificate for a period of 90

days. See "Order of Suspension" attached hereto.

The plaintiff filed an appeal with the NTSB on November

4, 1996. The filing of this appeal stays the order during the

pendency of the appeal before the NTSB. As of this date, the

appeal continues to be pending before the NTSB awaiting a

hearing date, and plaintiff continues to be able to fly under

authority of his pilot's certificate. Plaintiff currently is the

captain of a Boeing B-727 owned by a Saudi Arabian citizen for

his own private transportation and is based in Riyadh, Saudi

Arabia. Plaintiff's Memorandum in Support of Motion for

Preliminary Injunction at 4 5.

GUMENT

I. THE COURT LACKS SUBJECT MATTER

JURISDICTION

1. There is No Final Agency Action Which Gives This

Court Jurisdiction

Plaintiff seeks judicial review under the APA, which

ordinarily allows review only after a final agency action has

taken place. "The test of finality in this sense is not whether the

order is the last administrative action contemplated under the

statutory scheme, but whether the consequences of the order are

sufficiently concrete and definite to warrant review." Nevada

Airlines v. Bond, 622 F.2d 1017, 1020 n. 5 (9th Cir 1980). See

also FTC v. Standard Oil Co., 449 U.S. 232 (1980). A court

may review a nonfinal agency action only in "extraordinary

circumstances," such as where there is "clear violation of the

law," or if the action will cause a party "severe and irreparable

harm." American Train Dispatchers Ass'n. v. ICC, 949 F.2d

413, 414 (D.C.Cir. 1991).

No such "concrete and definite" action has as yet occurred,

nor are there any "extraordinary circumstances" warranting

review at this stage. Indeed there remains the possibility that the

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NTSB will modify or set aside the FAA suspension order,

leaving the plaintiff and his counsel nothing on which to base

this latest challenge. Further, as the case law unequivocally

shows, the FAA order does not constitute a "clear violation of

the law.”

Recently, the Ninth Circuit held that an optional appeal to

an administrative law judge rendered an agency administrator's

initial decision nonfinal for purposes of judicial review under

the APA, and, therefore, the claims were not ripe for review.°

Acura of Bellevue v. Reich, 90 F.3d 1403, 1407 (9th Cir.

1996)(plaintiffs seeking APA judicial review and requested

declaratory and injunctive relief from an agency decision) .

relying upon Stone v. INS, _ U.S. __, 115 S.Ct. 1537, 131

L.Ed.2d 465 (1995). The Ninth Circuit's reasoning is

appropriate here, as well: "[a]llowing judicial review in the

middle of the agency review process unjustifiably interferes

with the agency's right to consider and possibly change its

position during its administrative proceedings." Id. at 1408-09.

Moreover, an attack on the authority of an agency to

conduct an investigation, or take the challenged action in the

first place, does not obviate the finality requirement. Veldhoen

vy, US.. Coast Guard, 35 F.3d 222, 225 (Sth Cw.

1994)(challenge to agency investigation not judicially

reviewable because there was no final agency action); see

Aluminum Co. of America v. U.S., 790 F.2d 938, 942 (D.C.Cir.

1986)(claim that agency action is beyond statutory authority

does not make a difference for finality analysis); Ticor ‘Title

5 Review under the APA of agency action is nearly always limited to the

administrative record presented by the agency to the reviewing court.

Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985);

Camp v. Pitts, 411 U.S. 138, 142 (1973); Citizens to Preserve Overton

Park, 401 U.S. 402, 420 (1971); Friends of the Earth v. Hintz, 800 F.2d

at 828-829; Asarco Inc. v. EPA, 616 F.2d 1153, 1158-1160 (9th Cir.

1980). That record consists of the materials and files that were before the

agency at the time the rule was promulgated or a decision was made, not

materials adduced through de novo proceedings in court. See FPC v.

Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 331 (1976).

A-64

eee ern erm

Insurance Co. v. FTC, 814 F.2d 731, 747 (D.C.Cir. 1987).

Because plaintiff has not completed his appeal with the NTSB,

this Court lacks jurisdiction.

2. There Is a Serious Question Whether Judicial

Review, If Appropriate Now, Is Filed In The

Appropriate Court

In lawsuits brought in this Circuit challenging the -

government's authority to suspend or revoke certificates for

violations of safety regulations, the Ninth Circuit has accepted

jurisdiction over such claims with the exception of two cases.

For cases within proper court of appeals jurisdiction see Go

Leasing v. National Transportation Safety Board, 800 F.2d

1514 (9th Cir. 1986); Roundtree v. United States, 40 F.3d 1036

(9th Cir. 1994); Clark v. Busey, 959 F.2d 808 (9th Cir. 1992);

Komijathy v. Nati LT _ Safety Bd., 832 F.2d 1294 (D.C.

Cir. 1987)(per curiam), cert. denied, 486 U.S. 1057 (1988);

Green v. Brantley, 981 F.2d 514 (llth Cir 1993) and Gaunce v.

DeVincentis, 708 F.2d 1290 (7th Cir.)(per curiam), cert. denied,

464 U.S. 978, 104 S.Ct. 417, 78 L.Ed.2d 354 (1983).

To date, the Ninth Circuit has allowed district court

jurisdiction over Bivens® actions seeking monetary damages

against individually named defendants when at least one of the

claims is a broad constitutional challenge to the actions of the

FAA, NTSB, and DOT. Mace v. kinner, 34 F.3d 854, 858-60

(9th [Page 11] Cir. 1994)(lower court designation CIV 91-

676(TUC)(RMB)D. Ariz. 1992)) and Foster v. Skinner, 70

F.3d 1084, 1087-88 (9th Cir. 1995). In those cases, the Ninth

Circuit articulated that it allowed this specific type of challenge

to be handled in district court because the Federal Aviation Act,

49 U.S.C.§§ 40101-49105 (1995), provided no remedy for the

Bivens claims seeking monetary damages. Mace at 858; Foster

at 1088. In addition, the Court reasoned that the plaintiffs in

6 Bivens v. Six U N f 1B f

Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

those cases were able to avoid the exclusive jurisdiction of the

Circuit Court by not basing their complaints on the merits of a

particular order. Mace at 858; see Foster at 1087.’

Just recently, the Circuit Court further narrowed these

parameters to allow the district court to have jurisdiction over

Bivens actions only when the plaintiffs claims are not

inescapably intertwined with the merits of a previous revocation

order. See Tur v. FAA, 1997 WL 4758 at *2 (9th Cir. 1997);

Mace at 858; Foster at 1087. In Tur, plaintiff sought recision of

a settlement agreement he had entered into with the FAA after

an [Page 12] ALJ found he had violated FARs and he sought

monetary damages under Bivens from individuals he claimed

deprived him of his property interest in his airman's certificate

without due process of law through their use of false testimony

in the administrative process. Tur at * 1-2. In that case the Ninth

Circuit held that the judicial review provision of the FA Act did

not permit the district court to have jurisdiction because the

claims were a collateral attack directed at the merits of a

previous adjudication. Id. at *2 (citing Foster v. Skinner, at

1088 and Clark v. Busey, 959 F.2d 808, 811 (9th Cir. 1992);

see Green v. Brantley, 981 F.2d 514 (llth Cir. 1993).

While plaintiff attempts to color his claims as a broad

constitutional challenge to agency authority, examination of his

prayer for relief reveals that his claim actually rests on statutory

grounds and is intended to preclude agency determination on

7 While Mace involved only a Bivens action, F oster included APA

claims as in this case, in addition to Bivens claims. However, in Foster

the Circuit Court took jurisdiction over all claims, characterizing the

entire suit as a Bivens action. While the Court's distinction between

which suits are to be properly brought in the Circuit Court and which are

to be brought in district court is somewhat unclear after Foster,

defendants assert that Mace and Foster should be interpreted as limiting

the district court's jurisdiction to only those suits where there is a broad

constitutional Bivens claim seeking monetary damages. In contrast, here

the plaintiff is seeking injunctive and declaratory relief under the APA.

However, it is overwhelmingly clear that no matter which court properly

has jurisdiction, the defendants have the authority which plaintiff

challenges.

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the merits of the FA action. He is collaterally attacking the

specific agency order against him. Plaintiff requests that this

Court stop the current administrative proceedings against him

and prevent the Suspension order from going into effect. See

Compl. Particularized challenges arising out of the facts of

individual cases are Precisely the type of claims barred from

district court jurisdiction by operation of 49 U.S.C. § 46110.

See Foster, 70 F.3d 1084; Tur at *3. Section 46110 of the FA

Act does not permit collateral attacks on previous FAA

adjudication to be brought in district court. See Tur at *3. See

also Green v. Brantley, 981 F.2d at 521 (lith [Page 13] Cir.

1993); Clark v. Busey, 959 F.2d at 811 (9th Cir. 1992); United

States v. McBride, 788 F.2d 1429, 1432 (10th Cir. 1986);

Robinson v. Dow, 522 F .2d 855 (6th Cir. 1975); see generally

vy. deVincentis, 708 F.2d 1290 (7th Cir. 1983)(for

holding that the FA Act preempts federal question jurisdiction

in the district courts).

The Ninth Circuit did not allow a plaintiff to challenge in

district court an emergency suspension of his certificate when

plaintiff sought injunctive relief alleging irreparable injury and

denial of due process. Nevada Airlines v. Bond, 622 F.2d 10] q;

injunctive relief. Id. The Court reasoned that Congress could

select the forum for judicial review of agency action and

“special Statutory review procedures take precedence over

whatever non-statutory review might otherwise be available in

the district court." Id. at 1020; see City of Rochester v. Bond,

603 F.2d 927, 935-39 (D.C.Cir. 1979),

Moreover, this Court should not depart from the dictates of

the FA Act because the remedy plaintiff seeks is available to

him under § 46110 of the Act, unlike the situation in Mace. §

46110 gives the court of appeals the jurisdiction to "to affirm,

amend, modify, or set aside any part of the order and may order

the Secretary or Administrator to conduct further proceedings.”

49 US.C. § 46] 10(c). If plaintiff properly follows the

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established [Page 14] administrative procedures under the FA

Act, the court of appeals can review plaintiff's statutory and

constitutional claims in addition to any other justiciable claims

he may have to the final decision. Therefore it would appear

that this Court does not properly have jurisdiction in this matter.

Il. THE PLAINTIFF HAS FAILED TOSTATE

COGNIZABLE CLAIMS UPON WHICH RELIEF

MAY BE GRANTED

In pursuing his claims under the APA, the plaintiff asserts

that the FAA's use of certificate revocations and suspensions to

penalize certificate holders for violations of safety regulations

has never been authorized by law. Compl. at ¥§ 20-21. He

attempts to put this statutory claim into a constitutional context

by asserting vagueness and that the suspension of his pilot's

license as a penalty for air-safety violations exceeds statutory

authority and therefore violates his Fifth Amendment right to

due process. Id. at § 22. Plaintiff similarly advances his Fifth

Amendment claim on the theory that the agency's failure to

publish its policy of suspending and revoking certificates

deprived the plaintiff of adequate notice that his conduct could ~

- result in suspension of his certificate. Compl. at ,f 20-23.

Plaintiff's claims are utterly without merit and completely

ignore well-established law. These same claims were explicitly

rejected by the Ninth Circuit when one of plaintiff's counsel

(Mr. Smith) raised them in Go _Leasing v. National

Transportation Safety Bd., 800 F.2d 1514 (9th Cir. 1986) and

in numerous other cases. This case also made clear that statutes

are not unconstitutionally vague if they give fair warning of the

[Page 15] proscribed conduct. Id. at 1525; Daily v. Bond, 623

F.2d 624, 626 (9th Cir. 1980).

A. The APA Standards for Judicial Review

As the FAA takes its enforcement actions based on its

understanding that the FA Act gives it that authority, **plaintiff

is in effect attacking the agency's interpretation of the FA Act.

The interpretation of a statute by the agency charged with its

administration generally is entitled to "great deference.” Udall

v. Tallman, 380 U.S. 1, 16, reh. den. 85 S.Ct. 1325 (1965). On

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its face, the FA Act clearly gives authority to the FAA to take

action to enforce the safety regulations. But even if the statute

were silent or ambiguous, a reviewing court considers "whether

the agency's answer is based on a permissible construction" of

the statute according deference to the agency's interpretation.

NLRB v. United Food and cial Wor ion al

23, 48 U.S.112, 108 S.Ct. 413, 421 (1987) (quoting Chevron

S.A. Inc. v. N ces Defense Council. Inc., 467

U.S. 837, 843, n. 9 (1984)). To survive judicial scrutiny, the

agency's interpretation "need not be the best or most natural

one," so long as it is reasonable. Pauley v. ner. ines

Inc., 111 S. Ct. 2524, 2537 (1991). Courts should not "lightly

overturn" an agency’s construction of a statute it is charged

with administering and must accept the construction if it is

reasonable. Dept. of the Treasury v. FLRA, 494 U.S. 922, 110

S.Ct. 1623, 1627 (1990). The Court must presume that

Congress said what it means in a statute. Connecticut National

Bank v. [Page 16] Germain, 503 U.S. 249, 253-54 (1992).

Furthermore legislation carries with it a presumption of

rationality and constitutionality. Walters v. NARS, 468 U.S.

1323, 1324 (1984); Hodel v. Indiana, 452 U.S. 314, 331-32

(1981).

In this case, controlling law in this jurisdiction and others

clearly states that the FAA has the statutory and regulatory

authority to suspend and revoke certificates in response to

safety violations. See infra text. Because numerous courts have

held that defendants have the authority to take such action, it

goes without saying that these Courts have confirmed

repeatedly that the agency's interpretation of the FA Act is

reasonable.

B. The Ninth Circuit And Other Circuits Have

Previously Rejected Substantially Identical Claims of

Lack of Statutory Authority and Consequent Fifth

Amendment Violations

Plaintiff appears to be oblivious to the fact that the courts of

appeals for this and other circuits have consistently held that the

FAA properly has the statutory authority to suspend or revoke

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an aviation certificate as a sanction for violations of the Federal

Aviation Regulations (FARs; that the NTSB is vested with the

authority to uphold, amend, modify, or reverse orders of

revocation or suspension; that the FA Act is constitutional; and

that the FAA's procedure does not violate due process. See Go

Leasing, Inc. v. National Transp. Safety Bd., 800 F.2d 1514,

1519-21, 1524, 1526 (9th Cir. 1986); Foster v. Skinner, 70 F.3d

1084 (9th Cir. 1995; Roundtree v. United States, 40 F.3d 1036

(9th Cir. 1994). See also Dilley v. National Transp. Safety Bd.,

[Page 17] 49 F.3d 667 (10th Cir. 1995); Knipe v. Skinner, 999

F.2d 708 (2d Cir, 1993); Hite v. National Transp. Safety Bd.,

991 F.2d 17 (1st Cir. 1993); Rochna v. National Transp. Safety

Bd., 929 F.2d 13, 15 (1st Cir.), cert. denied, 112 S.Ct. 305

(1991); Hill v. National Transp. Safety Bd., 886 F.2d 1275,

1281 (10th Cir. 1989); Tearney v. National Transp. Safety Bd.,

868 F.2d 1451, 1454 (Sth Cir.), cert. denied, 493 U.S. 937

(1989); Komjathy v. National Transp. Safety Bd., 832 F.2d

1294 (D.C. Cir. 1987)(per curiam)(APA and Due

Process/Vagueness Claims), cert. denied, 486 U.S. 1057

(1988).* ;

In Go Leasing, the plaintiff made essentially the same APA

challenge as in this case by arguing there was no grant of

authority of the FAA and NTSB to impose revocations or

suspensions for violations of safety regulations. Id. at 1526. In

light of clearly established case law, plaintiff's claims that the

suspension or revocation of an aviation certificate as a form of

penalty for FAR violations has never been authorized by law

and that the suspension of his pilot's license violated his Fifth

Amendment right to due process are wholly without merit.

Compl. ¥§ 20-22.

C. 9th Circuit Law Also Rejects Plaintiff's Argument

Regarding Notice and Comment

Plaintiff asserts in his complaint that because certificate

8 One of plaintiff's counsel, Mr. Smith, is aware of these cases as he was

a counsel of record on: Rochna, Tearney, Komijathy, Go-Leasing, Foster,

Roundtree, Knipe, and Dilley.

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owners are not advised by publication in the Code of Federal

[Page 18] Regulations or any other "official federal

publication" that a violation of the FARs could be sanctioned by

revocation or suspension of their certificates or that the FAA

has the authority to take such action, he was not afforded

adequate notice under the Fifth Amendment right to due

process. Compl at § 23. He brings this constitutional claim

under the APA. Compl. at 1.

Plaintiff continues to ignore the Ninth Circuit decision in

Go Leasing, which held that the FAA's procedure for enforcing

the FARs does not violate due process. Go Leasing, 800 F.2d at

1523-24. As has been firmly established in this and other

circuits, the APA requires neither the promulgation through

notice and comment nor the publication in the Code of Federal

Regulations or the Federal Register of the FAA's policy to

suspend or revoke certificates as a method of imposing

sanctions for violations of FARs. See e.g:, Rochna, 929 F.2d at

15-16; Tearney, 868 F.2d at 1454; Komjathy, 832 F.2d at 1296-

97; Go Leasing, 800 F.2d at 1522-24; Dilley, 49 F.3d 667 at

669-670. The standard by which the administrator determines

whether suspension or revocation is appropriate is found in the

Federal Aviation Act. Go Leasing, 800 F.2d at 1523; Reid v.

Engen, 765 F.2d 1457, 1463 (9th Cir. 1985).

Specifically, 49 U.S.C. § 44709(b)(1)(A) authorizes the

Administrator to suspend or revoke aviation certificates when

he determines that "safety in air commerce or air transportation

and the public interest" requires such action. That statutory

[Page 19] standard is "synonymous with public safety." Holmes

v. Helms, 705 F.2d 343, 345 (9th Cir. 1983)(per curiam). It is

well-settled that the "public safety" standard articulated in 49

U.S.C. § 44709(b)(1)(A) is sufficiently definite to satisfy due

process. See, e.g;, Tearney, 868 F.2d at 1455; Go Leasing, 800

F.2d at 1523; Reid v. Engen, 765 F.2d at 1463; Holmes, 705

F.2d at 345-46. Because the criteria under which the

Administrator takes certificate action is provided in the Act

itself and because such Statutory criteria meet the notice

requirement of due process, the publication of a statement

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advising certificate holders that certificates are subject to

revocation for FAR violations or of the FAA's authority to take

such an action is not constitutionally required.

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION

Preliminary injunctive relief is not granted "except in the

most extraordinary circumstances[.]" Rizzo v. Goode, 423 U.S.

362, 379 (1976). To qualify for a preliminary injunction in the

Ninth Circuit, the moving party, has the substantial burden of

showing either (1) a combination of probable success on the

merits and the possibility of irreparable harm, or (2) that serious

questions are raised and the balance of hardships tips sharply in

the moving party's favor. Dumas v. Gommerman, 865 F.2d

1093, 1095 (9th Cir. 1989); Apple Computer Inc. v. Formula

Int'l, Inc., 725 F.2d 521, 525 (9th Cir. 1984); see also Mayo v.

United States Gov't Printing Off., 839 F. Supp. 697, 699 (N.D.

[Page 20] Cal. 1992), affd, 9 F.3d 1450 (9th Cir. 1993). These

standards are not two distinct tests but rather are the opposite

ends of a single continuum in which the required showing of

harm increases proportionately as the likelihood of success on

the merits decreases, or vice versa. Rodeo Collection. Ltd. v.

West Seventh, 812 F.2d 1215, 1217 (9th Cir. 1987).

Nevertheless, under either formulation of the test, the moving

party must demonstrate that it will be exposed to "some

significant risk of irreparable injury." Associated Gen'l

Contractors of Calif. v. Coalition for Econ. Equity, 950 F.2d

1401, 1410 (9th Cir. 1991), cert. denied, 503 U.S. 985 (1992).

In appropriate cases, the public interest should also be

considered. Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir.

1983). Under these standards, plaintiff has not shown that he is

entitled to a preliminary injunction.

I. Plaintiff Has Not Shown A Likelihood Of —

On The Merits Of The Case

As set forth above, plaintiff has failed to establish any bases

in law for pressing his claim that the FAA and the NTSB do not

have the authority to take suspension actions against him. Nor

can he stop the administrative process by asserting frivolous

A-72

notice and comment/vagueness claims. F urther, there is a

serious question here whether there is any jurisdiction in this

Court to hear this claim at this time. The cumulative effect of

the case law is that plaintiff has no likelihood of success on the

merits and, therefore, has failed to satisfy the first requirement

for obtaining a preliminary injunction. [Page 21]

II. Plaintiff Has Not Demonstrated He Will Suffer

Irreparable Harm Absent A Preliminary

Injunction

Plaintiff has failed to establish a significant risk of

irreparable injury, citing only inconvenience or unsupported,

conclusory fears of loss of his job. These allegations are

insufficient to support issuance of the extraordinary injunctive

relief requested. First of all, plaintiff is still flying and is not on

the verge of having his pilot's license actually suspended. See

Supra text. Plaintiff is in the midst of the administrative process,

having appealed the proposed suspension of his pilot's

certificate to the NTSB.

A preliminary injunction should not be issued because it

would not change circumstances plaintiff states he seeks to

avoid. In arguing that he will suffer irreparable harm, plaintiff

merely opines that he would apply for a job with Delta Airlines

if he were not involved in an FAA certificate action.

Memorandum in Support of Motion for Preliminary Injunction,

at 6. This does not establish irreparable injury. Nothing stops

plaintiff from applying for any jobs. More importantly, a

preliminary injunction will not erase the record of safety

violations which gave rise to the FAA action, nor will it

preclude the possibility that the suspension will ultimately be

imposed. Plaintiff merely speculates about how he might lose

his job at some point in the future.’ Pure speculation of the type

9 Nor do the burden and expense of complying with the administrative

process constitute irreparable harm. It is well established that monetary

injury, does not justify preliminary injunctive relief. "[H]owever

substantial" the injury, the loss of money "falls far short of the type of

(continued...)

A-73

plaintiff provides is not enough to establish risk of irreparable

harm. A party moving for an injunction is required to show that

injury is "both certain and great." Wisconsin Gas Co. v. FERC,

758 F.2d 669, 674 (D.C.Cir. 1985)(bare allegations of what is

likely to occur are of no value and mere injuries that are not

irreparable are not enough).

Ill. Plaintiff Is_Not Entitled To A Preliminary Injunction

Because The Balance Of Harm Tips In Favor Of The

Defendants And The Public Interest Would Be Served By

Denying The Preliminary Injunction

The public interest argues against the injunction. The

administrative procedure to revoke or suspend certificates acts

to protect the public safety by preventing unsafe air personnel

from engaging in their jobs for a period of time. It is in the

public interest for the FAA to continue enforcing its regulations

in a timely manner in order to encourage adherence on the part

of all certificate holders. An injunction would frustrate the

purpose of the Federal Aviation Act as mandated by Congress

and would, therefore, disserve the public interest.

As this Court saw it proper to delay the hearing on the

preliminary injunction for several months, it would not now be

proper to implement such drastic measures when there are no

extraordinary circumstances that call for injunctive relief.

CONCLUSION

For the foregoing reasons, plaintiff s motion for preliminary

injunction should be denied; this case should be dismissed and

the defendants awarded their cost of this litigation.

DATED this 13" day of February 1997.

Respectfully submitted,

FRANK W. HUNGER .

Assistant Attorney General

°(...continued)

irreparable injury" necessary for preliminary relief. Sampson v. Murray,

415 US. 61, 90, 91-92 (1974); see Colorado River Indian Tribes v. Town

of Parker, 776 F.2d 846, 850 (9th Cir. 1985); Los Angeles Memorial

Coliseum Comm’n v. National Football League, 634 F.2d 1197, 1202

(9th Cir. 1980).

A-74

JANET NAPOLITANO

United States Attorney

MONTE CLAUSEN

Assistant U.S. Attorney

s/ LUCINDA M. LOVE

SANDRA A. SCHRAIBMAN

Attomeys

Civil Division, Federal Programs

U.S. Department of Justice

901 E Street, N.W., Room 1024

Washington, D.C. 20004

Telephone: (202) 514-2337

Attorneys for Defendants

///

////

LAWRENCE B. SMITH

Attorney at Law

September 25, 1996

Hon. Richard M. Bilby

United States District Judge

55 East Broadway Blvd.

Tucson AZ 85701

Dear Judge Bilby:

I asked for an appointment earlier this summer in order to

personally deliver the material contained in the accompanying

file box. The 3-hole notebooks contain an official copy of a

46 1-page voluntary sworn statement of John E. Marsh, Jr. They

are accompanied by an Exhibit Book used in taking the

statement.

Marsh, without question is the expert's expert on FAA

enforcement policies. He was the key deponent all three of the

times I tried to set up depositions of several FAA lawyers.

A-75

Since nothing in the USC, CFR, nor any legislative history

even hints at a connection between safety violations and

suspension or revocation of an airman certificate (a fact which

courts have consistently failed to acknowledge or deal with),

I've known for years that the only way a litigant can show a

court how the FAA program works is to get it out of the mouth

of agency lawyers responsible for running it. Marsh's statement

completely vindicates my claim that something is terribly

wrong with that program. No reported case has ever been

decided on the basis of a record that explains factually how the

enforcement program works, much less their ramifications.

For two cogent reasons I urge you to read Marsh's

statement. One, you have a picture of me as some kind of

wildman chasing wayout theories about FAA enforcement.

Two, the integrity of the judicial process has been tampered

with by both Justice and FAA lawyers. And I can easily explain

how they've done it.

(1) Harassment —In Mace v. Skinner, CIV 91--676 TUC

RMB, you charged that I came close to harassing the

government; you also ordered the Clerk not to accept anymore

pleadings from me on the subject. These are extremely serious

matters, obviously leading to your statement you'd not be

comfortable talking to me.

When you read Marsh's explanation of how FAA

enforcement works, I'm certain you'll see that Justice

Department counsel's persistent claim that I've been harassing

the government is totally false and was designed to mislead.

May I suggest you first read the Executive Summary. It

outlines some of the more important facts brought out in the

statement. The "Significance" paper expands on that. I hope you.

will read the entire statement. It's a little ragged: Marsh wanted

to talk, so I let him; I couldn't really cross-examine him or press

too hard. He was obviously uncomfortable and I couldn't risk

his walking out. Besides, I like the man, and it took lots of guts

on his part to participate. He was paid $500 for his time. I knew

him when I worked at the FAA in 1967-68.

The statement took eight hours of intensive questioning. (I

A-76

could have used another day.) I think he agreed to do it because

I'd had him read my law review article and he wanted to justify

his twenty-one years in enforcement. I'm sure he was unaware

during that time of the history my article lays out, history that

shows the illegality of the FAA license penalties beyond

purview.

(2) Integrity of the judicial process — Let me refresh your

memory. The Mace record will reflect that while the case was

in the Ninth Circuit you granted my motion under Fed.R.Civ.P.

27(b) (perpetuation of testimony by deposition while a case is

on appeal) to depose Marsh and several others, all over 70.

Justice Department Counsel, Nina Pelletier, then called me on

a Thursday night from Chicago and left a message on my

answer machine: "We are not going to oppose the depositions

(it was an appealable order), and I'll be back in Washington on

Monday."

Monday morning, I set up times with two of the most

important deponents: Marsh, and Nathaniel Goodrich, FAA

deputy general counsel and general counsel from January 1959

until 1970. Pelletier, that same morning, agreed to the times.

Then, that afternoon, she talked with the FAA litigation

lawyer with whom she coordinated. Evidently she hadn't told

him about the depositions. It was clear from what followed that

the FAA lawyer went into a panic mode. He cited a DOT rule

that prevented agency employees from testifying as experts. It

had been recently amended to include former employees. It had

no application to my witnesses: they were simply going to

testify, as Marsh has done, factually as to how the enforcement

system works, not as experts giving an opinion, such as, on the

cause of an aircraft accident. ,

The whole situation flip-flopped. Pelletier told me that same

afternoon she was going to file an emergency protective order.

She did. The use of the DOT amended rule (self-described as a

"housekeeping" rule) was nonsense. The authorities are Clear,

as are basic legal principles: agency rules cannot impinge upon

judicial authority. But the main thrust of what she did over the

phone during the hearing was spout the usual rhetoric about my

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harassing the government because of the cases I'd filed. You

granted the motion.

In none of the cases I filed did Justice Department counsel

ever deal directly with any of the separate and carefully worded

causes of action; e.g., they never once explained how the

government can run an important system of administrative

justice but not warn airmen in any official federal publication

that their licenses are at risk for the violation of a safety rule.

No reported case has ever ruled on any of the many causes

of action I asserted on behalf of my clients. Two exceptions,

both directly support two of the causes of action. With all due

respect your Honor, the irony in all this is something you said

to Monte Clausen back in 1990 in Clark v. Busey, CIV 90 164

TUC RMB. The complaint sought a mandatory injunction that

would require the FAA to publish in the Federal Register a

summary I'd prepared for airmen who had petitioned for a

comprehensive rule that explained FAA enforcement. You had

granted my motion to accelerate depositions. Clausen, on behalf

of the FAA, orally moved for a protective order.

You denied it, and told him, "He's going to get his

depositions anyway." A few days later FAA lawyer Peter Lynch

arranged a telephone conference with you in Philadelphia; the

FAA capitulated, so you canceled the depositions. Your

statement was my guiding light throughout the Bivens and

FTCA lawsuits I filed.

I've known since 1980, when I was a consultant to the U.S.

General Accounting Office, and interviewed major players in

the FAA enforcement program, that if ever put under deposition

where they had nachoice but to explain how it worked it would

collapse from the weight of the simple truth. That is the great

contribution Marsh has made.

After you read this material, all or part, I would be most

grateful for a chance to sit down with you informally, answer

any questions you might have so that this cloud over me can be

blown away. I also want to explore any appropriate action that

could or should be taken. You are welcome to keep any of the

material as long as you wish.

A-78

ene ee

Respectfully,

Lawrence B. Smith

Encls

Wall Street Journal Op-Ed column

Marsh: Executive Summary

Marsh: "Significance" White Paper

Marsh: Court Reporter copy of statement (2 volumes)

Marsh: Copy of Exhibit Book used for statement

Marsh: Floppy disk with statement in ASCII and WPWin

6.0*

F.K. Smith letter

Paul McAfee letter

* This file contains Marsh's deletions and additions

i E—

EXHIBITS TO ACCOMPANY

JOHN E. MARSH JR. STATEMENT

Major Categories

I. AVIATION STATUTES

II. LEGISLATIVE HISTORY

Il. | ADMIN. PROC. ACT

IV. FARS (CFR)

V. OLD CAA/FAA RULES

VI. NTSB RULES

VII. ENFORCEMENT MANUALS

Vill. FAA ORDERS

IX. | KEY FAA DOCUMENTS

X. KEY CASES

XI. | WILSON GOVT. BRIEF

XII. | MISCELLANEOUS

XIII. FEDERAL REGISTER EXCERPTS

TabNo. I. AVIATION STATUTES

1. Air Commerce Act of 1926

a. § 3(f) (44 Stat. 568, 570)

b. § 11 (b) (44 Stat. 574)

2. Civil Aeronautics Act of 1938

a. § 609 (52 Stat. 1011)

b. §§ 901, 903 (52 Stat. 1015,1017)

3. Federal Aviation Act of 1958

a. § 602 (72 Stat. 776)

b. § 609 (72 Stat. 779)

c. §§ 901 & 903 (72 Stat. 783)

d. § 609, were it amended

Il. LEGISLATIVE HISTORY

4. 1926 & 1958

a. 1926: Enforcement by means of civil penalties

b. 1958: Senator Monroney

lil. ADMINISTRATIVE PROCEDURE ACT

5.5 U.S.C. §§ 551, 552, 553, 558

IV. FARS (CFR)

6. 14 CFR pt 13 (1968): §§ 13.11, 13.15,

13.17, 13.19, 13.67

V. OLD CAA/FAA RULES

7. § 74 (1926) and civil penalty rules

8. 1938 CFR

a. 14 CFR 20.37, 20.37110, etc. (1938)

b. Part 94 "Penalties"

9. 14 CFR 408.25 8 25 (1952)(emergency rule)

10. 14 CFR 408.23 (1960) (civ pen rule--"shall —

be subject to”)

11. 14 CFR 408.23 (1962) § 13.15 (1964) ("is

subject to")

12. 14 CFR 301.23 & 26 (1956 - CAB) (Record of

prev viol)

Vl. NTSB RULES

13. 49 CFR § 821.30 et seq. (1977)

VII. MANUALS

A-80

14. CAA Man of Proc 103, ("Blackjacking")

15. FAA Manual of Procedures, Ch. 22, (1960)

16. FAA Order 8030.7A 1970, (Reinsp/Reexam vs. ©

“punishment")

17. FAA Order 2150.2 (1968)

a. Cover/p.3: Enforcement, statutory

responsibility

b. p. 4: Legal processing by counsel

c. p. 9: Do not use both actions; how to

choose which

d. p. 10: Revocation/concurrent

imposition of sanctions

e. p. 13: Prior violation record

f. p. 15: If viol too old use civil

penalties

g. p. 27-28: Multiple actions, don't do,

but not against law

h. p. 39-40: Emergency, never impose for

punitive reasons

i. p. 57: compliance disposition

j. p. 99-100: care, judgment &

responsibility

18. FAA Order 2150.3 (1980)

a. Cover

b. Foreword

c. p. 11: Must estab regulatory standards

d. p. 12: Statutory background

e. p. 13: mpose punitive

sanctions.achieve remedial purposes

f. p.14-16: Determine type of legal

action

g. p. 17-18: Selecting the sanction

h. p. 19: First offense violations

i. p. 44-45: Ltrs of investigation

A-81

("don't cite FAR")

j. p. 65: Sample LOI ("discuss it with

us")

k. p. 101-02: Reinspection-reexamination

1. p. 162-63,166: Civil penalties; shift

in sanctions

m. p. 167-68: Certificate Action

(deferred action)

n. p. 173: Emergency orders (lack of

qualifications)

Vill. MISC. FAA ORDERS

19. FAA Order 1000.9C, Enf. Policy (1967) (See

other list)

20. FAA Order 2100.13, § 22a at 8 & ¥ 33.B, at

14

IX. GAO MATERIAL

21. James Minor memorandum re Admin. Proc. Act

22. Daggett Howard memo

23. Carneal memo

24. Letter regarding problems with civpens

a. Baker letter

b. Coker letter

25. Survey of the enf program (Keyser)

26. Briefing for Anderson Subcom

X. REPORTED CASES

27. Wilson v. CAB

28. Hard v. CAB

29. Pangburn v. CAB

30. Petition of Sichel

XI. BRIEFS

_31. Wilson v. CAB, Brief for the Respondent

(Govt.)

a. pp. 20,21,22 |

~ b. pp. 11-19 :

A-82

c. np. 74-74

d. p. 7 (Bd's purpose is remedial)

32. Lee v. CAB ("remedial” challenged by CAB

itself)

XII. MISCELLANEOUS

33. Komons, Bonfires to Beacons

34. Jennings Roberts memo

35. Nadiak cases re air safety

36. Petition for Rulemaking FAR 13.19

XIII. FEDERAL REGISTER

37. 24 FR 8 (1959) (rulemaking: "will follow

APA")

38. 27 FR 1110 (1962) (establishes FAA hearing

program w/o NPRM)

39. 35 FR 5464 (1970) (eliminates FAA hearings

w/NPRM)

EE ee

FAA ENFORCEMENT RELATED ARTICLES

BY LAWRENCE B. SMITH

1. SMITH, FAA PUNITIVE CERTIFICATE SANCTIONS: THE

EMPEROR WEARS NO CLOTHES. Or, How Do You PUNISH A

PROPELLER?, 14 Transp. L.J. 59-100 (1 985) ("Emperor").

2. “FAA BLACKJACK,” Professional Pilot at 91, Feb. 1981.

3. “FAA: ILLEGAL DISCIPLINARIAN?,” Aviation Digest at 26,

Sep. 1987.

4. “FAA ABUSE OF POWER: A CASE STUDY; THE GO Group

UNLIMITED, TUCSON, ARIZONA, MAY 1988" (booklet

published privately).

5. “FAA ENFORCEMENT: TIME FOR REFORM,” FBO Magazine

[Fixed Base Operator] at 50, Sept-Oct 1989.

6. “ARE BASIC FAA PROCEDURES LEGAL?,” Western Flyer at

8 Sec. A, 2nd Issue Oct. 1989.

7. “CAN THE FAA TAKE Your TICKET?,” The Southern

Aviator at 22, Sep. 1994 (also published in two other

A-83

aviation journals).

8. “REGULATORY COMMISSION WOULD REIGN IN UNELECTED

BUREAUCRATS,” General Aviation News & Flyer at 15, 1st

Issue Jun. 1995.

9. “OPINION FROM A MEMBER,” Lawyer-Pilots Bar Ass'n

Journal at 6, Summer 1995 (same article as preceding; also

published in three other aviation journals).

10. “WHY DID FAA WAIT SOLONG TO ADMIT REVOCATION CASE

WAS FULL OF HOLES?,” Flyer at 33, Oct. 16, 1998.

11. “FAA Drops REPO MAN CASE ATLAST MINUTE,” Atlantic

F lyer at 10, Oct. 1998 (same article as preceding).

FAA ENFORCEMENT CASES TRIED BY LAWRENCE

B. SMITH

12. Go Leasing (assisted — emergency

FCVOCEREGR) <.ccsccnssceniaticnbunansiannleeceeas Tucson, 1 week

13. Royal American Airways (emergency

MVOC asinine L.A., 1 week

14. Crete (operator, emergency

SUVOCMIIID ns siciccmninksadeanste Boston, 2-3 days

15. Rochna (airman, suspension) ............... Boston, 1-2 days

16. Hite (airman, revocation, non-

CUED saiccccttssaessiatiivcnpedaaaeinbaieaieee Boston, 2 days

17. Alaska Island Air (emergency

SOVOORIMID © occas ccicinsdiciais ection Juneau, 2-1/2 days

18. Coastal Airways (emergency

This text is long and has been trimmed here. Open the source document for the complete record.