# Appendix — Frye v. Slater > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1037%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2000 - **Citation:** 531 U.S. 814 ## Text ? -\_ 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 A-50 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 A-51 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 A-55 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 A-59 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1037%3A2. Public record. Not legal advice.