Petition for Writ of Certiorari — Catchpole, In re (No. 98-1354)

Suorem

) 98185 4 NOV 201%

OFFICE OF THe CLERK

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1998

In re FREDERICK R. CATCHPOLE,

Petitioner,

ALLAN F. ELMORE, A.L.J., ASBCA

ROGER P. WILLIAMS, ATTY., DEPT.OF TRANS.

JAMES A. BLACKWELL, III, ATTY., USAF

EDWIN PR. BABBITT, ATTY., USAF

ARMED SERVICES BOARD GF CONTRACT APPEALS

UNITED STATES AIR FORCE,

Respondents.

Petition for a writ of mandamus

And declaratory judgement

In matters before the Armed Services

Board of Contract Appeals (ASBCA)

ASBCA case 46462

PETITION FOR EXTRAORDINARY WRIT

FREDERICK R. CATCHPOLE, pro se

2107 Coast Street, #N

Brunswick, Georgia 31520

912-262-9405 ott

THE SUBJECTS PRESENTED FOR ACTION

I. PETITION FOR WRIT OF MANDAMUS TO THE

ARMED SERVICES BOARD OF CONTRACT APPEALS

Petitioner Frederick R. Catchpole

asks for auwrit ordering the ASBCA to

comply with its own decision of 21 May

A996 .

II. PETITION FOR A DECLARATORY JUDGMENT

The SUPREME COURT is asked to

declare: (1) that the DUTCH MEMORANDUM

is definitive and controlling in TPI

related matters that are covered by the

DUTCH MEMORANDUM; (2) that DUTCH found

that the FAA did not have sufficient

evidence to take the TPI certificate;

(3) that the DUTCH MEMORANDUM proves the

FAA grounding caused the USAF contract

cancellation; (4) that the USAF must

Pay twenty eight million dollars’ for

damages to TPI; (5) that sanctions shall

i

be assessed against government lawyers

as asked herein; and (6) that under the

laws cited in Supreme Court case 98-147,

the USAF has an obligation to protect

contract airlines while they operate on

military bases.

PARTY AND CORPORATE INFORMATION

The Respondents are: (1) A.L.J.

Allan F. Elmore, ASBCA; (2) Roger P.

Williams, atty., Dept. of Transportation

Inspector General’s Office; (3) James A.

Blackwell, III, USAF attorney; (4) Edwin

R. Babbitt, attorney, USAF; (5) the

Armed Services Board of Contract

Appeals; and (6) the U.S. Air Force.

Petitioner Frederick Catchpole is

president and majority shareholder of

TPI INTERNATIONAL AIRWAYS, INC. (TPI).

Mr. Catchpole (pro se) represents TPI in

a shareholder derivative action under

F.R.Civ.P. 23.1. He has been allowed by

11

—— . j

the district courts and by the Eleventh

Circuit in a number of related cases to

so act for TPI. Mr. Catchpole has had

two pro se cases decided by the Eleventh

Circuit in his favor, and has lost none.

This is a Rule 23.1 certification that:

(1) Catchpole was the majority share-

holder during all of the periods of the

transactions that are involved here;

(2) this action is not a collusive one

to confer jurisdiction ona court that

it would not otherwise have; and (3) the

corporation does not have funds and has

thus failed to enforce a right which it

may properly assert. Further, the

bankruptcy court has approved the

assignment of TPI litigation rights to

the Petitioner. The rules of the ARMED

SERVICES BOARD OF CONTRACT APPEALS allow

representation by an officer (48 C.F.R.

Ch. 2, App. A, Rule 26). There are no

Parent or subsidiary companies.

iii

TABLE OF CONTFNTS

THE SUBJECTS PRESENTED FOR ACTION .... i

Petition for Writ of mandamus

Petition for Declaratory Judgment

PARTY ANO CORPORATE INFORMATION ..... ii

Sie: SO GPU PAO ns es Rede oo ee Vv

BMSis FOR JURAOUSGIEUNM seteonewesewuus Vil

PERTINENT CONSTITUTIONAL PROVISIONS,

STATUTES AND REGULATIONS ...-.-ccccces ix

SIA tert GP [the GCRSL teed welscenweeeeun 1

PRCEUEEGT (2 kh wae kee be eek eee es eee ee 6

tre PGT Ate FOUL OIED sk « ses wee ee ae 16

ROE)0— ss Sb o's ola bot eee eae ee ae 20

Rae kb ee cee ee ee ene ae eee 23

APPENDIX TABLE OF CONTENTS .....cccces 24

Judee Elmore’s- Opinion. <«..<«<ssesescee- A-1

Fecerali Cireukt- Geinion..oivceac aucune A-6

Judge Elmore’s letter accepting the

motion for reconsideration ....-ccce- A-7

Tee DVUICH FEMORAMIUN <ouuceececchecoes A-9

iv

M1

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Dy

eS

TABLE OF AUTHORITIES

ITEM: PAGE

360 U.S. 474, 3 L.Ed.2d 1377,

79 S03. 10 Oss eee 11

Haas v. Darigold Dairy Products Co.,

751 F.2d 1096 (9th Cir. 1985) ....... 10

Hendler v. U.S.,

953 F.2d 1364 (Fed. Cir. 1991) ....... 12

Johnson v. State, 258 Ga. 506,

S73 6.8 .24:596 11908) 2... 22

Keen v. State, 164 Ga. App. 81,

296 3.6.20 Fl CEPR) Cece ese ee 21

390 F .24@ 894, 1862 Ct.c). 631, reversed

on other grounds 89 S.Ct. 1501, 395

VS. ky 20 6186228 G2. 5220. 20

M. Golodetz Export Corp. v. S/S Lake

Anja, 751 F.2d 1103 (9th Cir. 1985) 13

TABLE OF AUTHORITIES, CONTINUED:

5 U.S. (1 Cranch) at 165-66 .......... 11

Rowley v. McMillan,

S603 F.2d 1326 (0.6 HEV. OPE) cc5a ess 20

Ruzicka v. Conde Nast Publications,

939 F.2d 876 (Oth Cir. S908) <s.ccaces 9

Smith v. Meese,

821 F.2d 1484 (11th Cir 1987) ........ 11

U.S. v. Hamilton Enterprises, Inc.,

711 F.2d 1038 (Fed. Cir. 1983) ...... 21

U.S. v. Johnson,

S77 F.2d 1304 (Sth Cir. 1978) ....<s<s« 11

STATUTES:

18 U.S.C. Section 28. asi secees nas ue 13

if U.S.C. Section ISiZlO RA} .csxccne 2

28 U.S.C. S@GtiGn IGSh ose eee vii

28 U.S.C. S@CEION Zeek © sauuuesacasa vil

26 U.S.C. SBCGCILON SLUG. ns waeneeecen vil

5 C.F .R. Ch. XVI, Subpart A,

Section 2635.101 (b)(6) i .wenceess 8

Subch. I © esas passim

vi

a aa aa aural

BASIS FOR JURISDICTION

Jurisdiction is under 28 U.S.C.

Section 1651 as to the issuance of a

writ of mandamus. 28 U.S.C. Sections

2201 and 2202 provide the jurisdiction

for the Supreme Court to create a remedy

in the form of a declaratory judgment,

and any further relief after notice and

hearing against any adverse parties

whose rights have been determined by

such judgment.

The Court of Appeals for the

Federal Circuit would normally be the

appellate court for matters from the

ASBCA.

(NOTE: The court of Appeals for the

Federal Circuit previously refused to

allow this petitioner to appeal pro se

for TPI).

The Court of Appeals for the

Federal Circuit heard an appeal of the

of the ASBCA decision {before the DUTCH

vii

MEMORANDUM had been released subsequent

to appeal to the Eleventh Circuit}. The

Federal Circuit declined to review TPI’s

evidence that a fraud has been committed

upon the Court {based on the DUTCH

MEMORANDUM and other evidence}.

Petitioner Catchpole further states

that TPI’s case Number 98-147, at the

Supreme Court of the United States, is

also affected by the fraud committed by

government lawyers and personnel. 98-147

was denied Certiorary on October 5th

1998. The ASBCA has failed to provide a

forum for TPI to enter the EVIDENCE

that the government KEPT SECRET -until

now. The Government should not be

allowed to cheat the system by

withholding evidence and relying on the

courts to deny relief on the basis of

time. The Supreme Court should provide

a remedy.

viii

PERTINENT CONSTITUTIONAL PROVISIONS,

STATUTES AND REGULATIONS

Department of Defense regulations

as set out by "48 C.F.R. Ch. 2, App. A,

Subchapter I -- Agency Supplementary

Regulations" apply in this case and the

pertinent verbatim text is as follows:

Charter, par. 6: "Any member of the

Board ... shall be authorized to hold

hearings, examine witnesses, and receive

evidence and argument for consideration

and determination of the appeal

ASBCA Rule 5: “Motions. (a) Any motion

addressed to the jurisdiction of the

Board shall be promptly filed. Hearing

on the motion shall be afforded on

application of either party. However ,

the Board may defer its decision on the

motion pending hearing on both the

merits and the motion. The Board shall

have the right at any time and on its

1x

own initiative to raise the issue of its

jurisdiction to proceed with a

particular case, and shall do so by an

appropriate order, affording the parties

an opportunity to be heard thereon".

REPRESENTATION: ASBCA Rule 26: "The

Appellant. An individual may appear

before the Board in person, a

corporation by one of its officers; ...

MOTION FOR RECONSIDERATION: Rule 29: "A

motion for reconsideration may be filed

by either party. It shall set forth

specifically the grounds relied upon to

Sustain the motion. The motion shall be

filed within 30 days from the date of

the receipt of a copy of a decision of

the Board by the party filing the

motion.

TIME, COMPUTATION AND EXTENSIONS: Rule

33 (a): Where possible, procedural

actions should be taken in less time

than the maximum time allowed. Where

appropriate and Justified, however,

extentions of time will be granted.

All requests for extentions of time

shall be in writing."

x1

STATEMENT OF THE CASE

TPI International Airways, Inc. was

a cargo airline with a 1989-90 Air Force

contract. TPI aircraft were sabotaged.

The Air Force refused to investigate. It

cancelled the contract. The FAA grounded

TPI and bankruptcy followed.

Petitioner Catchpole was, and is,

President of TPI, as well as the major

shareholder. Catchpole contended that

the contract was terminated with fraud

on the part of government personnel and

that the FAA never had sufficient cause

to withdraw TPI’s airline licenses and

related governmental authorizations.

Petitioner Catchpole continued to

Pursue correction of the matter and

prevailed upon United States Department

of Transportation (DOT) personnel to

institute a management review by the

Office of the Inspector General (IG).

That management review by DUTCH became

1

known as the ODUTCH MEMORANDUM. That

document revealed that the government’s

actions were improper and its’ personnel

had acted in violation of various laws.

The government’s lawyers kept the

DUTCH MEMORANDUM secret from 1993 until

1998 when it was released after an FOIA

decision by the Court of Appeals for the

Eleventh Circuit. Government lawyers had

the DUTCH MEMORANDUM but continued to

argue in various courts that their

Position was well founded and that they

were in compliance with Rule 11 of the

Federal Rules of Civil Procedure. They

argued in the Court of Appeals for the

Federal Circuit that the government’s

position was correct when they knew full

well = that the Inspector General’s

investigation (the OUTCH MEMORANDUM )

Proved otherwise.

The OUTCH MEMORANDUM was finally

available to the Petitioner in 1998. He

2

prepared a motion for reconsideration

to the Armed Services Board of Contract

Appeals (ASBCA) citing the fraud upon

that administrative court (board) that

had occurred when government attorneys

Babbitt and Williams sat before it

and allowed (or possibly forced) a

witness to lie about’ the contents of

the DUTCH MEMORANDUM which had NOT been

made available to TPI or to the ASBCA at

the time of that hearing.

Judge ALLAN F. ELMORE of the Board

of Contract Appeals received the motion

from TPI and prepared the _ following

response which is quoted verbatim:

"Dear Counsel:

On 11 May 1998, TPI filed a motion

for reconsideration requesting the

Board grant it the opportunity to

submit a memorandum in support of its

contention that the Board “reconsider

its decision on the basis of fraud upon

3

EEE

the Court". The government filed a

response opposing the motion. After

consideration of the parties’ positions,

and over the government’s ob jection,

appellant’s request is granted.

Appellant will, on or before 26

June 1998, file its memorandum at the

Board. The Government, should it decide

to do so, will file its response to

Appellant’s memorandum on or before 24

July 1998.

S/Allan F. Elmore

Administrative Judge

Armed Services Board

of Contract Appeals

Petitioner Catchpole responded to

the ACCEPTANCE of the MOTION FOR

RECONSIDERATION with documentation of

the government fraud inthe form of a

copy of the government’s own document —-

THE DUTCH MEMORANDUM, WHICH HAD JUS

BEEN OBTAINED

BY IPI AFTER OVER FOUR

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US EFFORT ANDO LITIGATION.

4

Petitioner provided the Board with

substantial evidence that Air Force

attorney Captain Lee H. Dayton had

violated 18 U.S.C. Section 1512(b)(1).

Petitioner provided other evidence

that strongly indicated that Air Force

oils expert Robert L. Wright, Jr. (civ.)

had committed perjury in his testimony

before Judge Elmore.

Air Force attorney Edwin R. Babbitt

replied by citing Rule 29 of the Board

requiring reconsideration motions to be

filed within 30 days. He made 25 pages

of emotional argument and added a number

of exhibits. The significant item was

the citation of Rule 29.

ASBCA Judge Allan F. Elmore, with

the concurrence of ASBCA Vice Chairman

Mark N. Stempler and Acting Chairman

Alan M. Spector dismissed the motion

because it was not filed within 30 days

as required by Rule 29 of the Board.

S

z

The DUTCH MEMORANOUM, a government

document, is central to this case and it

is therefore set out in the APPENDIX to

allow the reader to see exactly what the

government kept hidden from 1993 to 1998

while the TPI cases were being tried in

various courts and before the ASBCA. SEE

APPENDIX.

ARGUMENT

The ASBCA should be _ directed to

decide the “motion for reconsideration"

as Judge Elmore agreed to do (see pages

3, 4 where his order is quoted).

48 C.F.R. Ch. 2, App. A sets out

the Charter and Rules for the ASBCA. It

States that any member of the Board

shall be authorized to hold hearings.

Judge Elmore is a member of the Board.

ASBCA Rule 5 requires any motion

addressed to the Board shall be promptly

filed and that the Board has the right

6

at any time and on its own initiative to

raise the issue of its jurisdiction and

to proceed with a particular case. Judge

Elmore did just that, and proceeded with

the TPI case.

ASBCA Rule 29 requires a motion to

be filed within 30 days after the

decision being appealed, BUT, Rule 33

provides that extentions of time may be

granted where appropriate and justified.

The TPI motion for reconsideration was

inherently a request for an extention of

time and Judge Elmore granted it when he

ACCEPTED THE MOTION and allowed the

parties to offer documents and argument.

The ASBCA then dismissed TPI’s

motion for reconsideration based on Rule

29 AFTER the ASBCA HAD ACCEPTED THAT

SAME MOTION FOR’ RECONSIDERATION AND

ASKED FOR ARGUMENT AND EVIDENCE.

Judge Elmore and the ASBCA did not

have to accept the TPI- motion for

7

_

reconsideration, but when it did a whole

new set of criteria became applicable.

First, the agreement to accept the

motion for reconsideration was clear and

unequivocal. 5 C.F.R. Ch XVI, Subpart A,

Section 2635.101, Basic obligation of

public service, (b)(6) states “Employees

Shall not knowingly make unauthorized

commitments or promises of any kind

purporting to bind the Government”.

Judge Elmore made a promise that bound

the Government to consider the

information about the matters that TPI

believed were fraud upon the Board.

He did not have to agree with the TPI

assessment - BUT - he does have to do

what he said he would do. He must

Proceed with the reconsideration and

make a decision beyond the decision of

timeliness which he had already decided.

Judge Elmore said “over the

Government ’s objection, the appellant’s

8

request is granted". The appellant (TPI)

had asked for RECONSIDERATION. He knew

the rules and he knew the time element

and he granted the motion for

reconsideration which he had the

authority to do. TPI raises the issue of

promissory estoppel in which a promise

reasonably expected to induce definite

action by the promissee, and which does

in fact induce such action is’ binding

under promissory estoppel if injustice

can be avoided only by enforcing the

promise. Representation about future

acts is not fraudulent merely because

the future act does not happen, unless

the promissor never intended to

perform. Ruzicka Vv. Conde Nast

Publications, 939 F.2d 578, n.5 and n.7,

(8th Cir. 1991).

The legal effect of Judge Elmore’s

order granting TPI the requested

reconsideration is purely a question of

9

oO

law that is reviewable de novo on

appeal. Estoppel Principles are

applicable in actions arising under

federal law. Haas Vv. Darigold Dairy

Products Co., 751 F.2d 1096, n. 1 and on.

6, (9th Cir. 1985).

“It is an immutable principle of

Jurisprudence that where governmental

action seriously injures an individual,

and the reasonableness of the action

depends on fact findings, the evidence

used to prove the government’s case,

documentary evidence and, even more

important, testimony, must be disclosed

to the individual so that he has an

opportunity to show that it is untrue".

“Where administrative action raises

Serious constitutional problems, the

United States Supreme Court assumes that

Congress or the President intends to

afford those affected by the action the

traditional safeguards of due process".

10

Greene v. McElroy, 360 U.S. 474, 3

LEG. 26: 2577 «73 S.C Lee, Rs Ss Os Ek

The Constitution imposes a duty on

all three branches of government to

uphold and support the Constitution.

When the other branches of government

fail in that duty, the judicial branch

has the power and the obligation to

redress the violation. As cited in

Smith v. Meese, 821 F.2d 1484, (11th

Cir. 1987 ) citing United States v.

Johnson, 577 F.2d 1304, 1307 (5th Cir.

1978) and Marbury v. Madison, 5 U.S.

(1 Cranch) at 165-66.

Judges Newman, Plager and Schall of

the Federal Circuit decided the TPI

appeal January 13, 1998 on issues BEFORE

the DUTCH MEMORANDUM had become

available through the Eleventh Circuit

action. In another 1991 case, Judge

Plager wrote: "As a general rule, trial

courts are given wide discretion to

re

aerial

manage the course of a trial, and to

direct the conduct of counsel. But this

discretion is not without limits. We

review the trial court’s dismissal

decision for an abuse of discretion

[ citations omitted ). An abuse of

discretion may be found when (1) the

court’s decision is clearly

unreasonable, arbitrary, or fanciful;

(2) the decision is based on an

erroneous conclusion of the law; (3)

the court’s findings are Clearly

erroneous; or (4) the record contains no

evidence upon which the court rationally

could have based its decision [citation

omitted]. Hendler Me “Vee. — 963. £28

1364 (Fed. Cir. 1991). Judge Elmore’s

decision to accept the TPI motion and

then to deny it under Rule 29 was

unreasonable and arbitrary at the very

least.

The case of the Government ’s action

12

in withholding the DUTCH MEMORANOUM; and

the government lawyers misconduct in the

concealment of evidence and subornation

of per jury by DOT attorney Roger

Williams; the violation of 18 U.S.C.

Section 208 by AUSA Ruth Young and ; the

perjury of government witnesses; and

other acts against the interests of TPI,

all warrant an immediate default

judgement in favor of TPI. In M.

Golodetz Export Corp. v. S/S Lake Anja,

751 F.2d 1103 (9th Cir. 1965) at n.1, 2,

and 3, the District Court’ rendered a

default judgement and assessed double

costs) and attorney fees where the

defendant ’s misconduct relative to

evidence and disobediance was So

egregious. The TPI case here shows all

of the evil above plus the fact that the

Government ’s own DUTCH MEMORANDUM shows

that:

is

(1) the FAA did not have sufficient

evidence to ground TPI in 1990.

(2) the Air Force Claimed that TPI lost

the USAF contract because the FAA had

grounded TPI.

(3) the FAA claimed to have grounded TPI

because the USAF cancelled the contract.

The Government whizzed off on a Flight

of fancy and TPI got nailed because no

one in government can see that the three

Statements above are mutually exclusive

of each other. But that is almost beside

the point because we have a motion that

has been accepted and then cancelled in

another flight of fancy. There would

have been no reason for Judge Elmore to

allow TPI and the government to file a

brief if the motion was out of time. It

Just should not happen - but that’s

government. The United States Supreme

14

Court should step in and provide a

rational solution.

There is an ultimate irony in this

matter of the DUTCH MEMORANDUM. N ONE

SINGLE WORD HAS BEEN OFFERED BY TH

GOVERNMENT TO

8)

EFUTE OR EXPLAIN ANY PART

IO

F THE DUTCH MEMORANDUM. Dutch found

that the FAA did not have the evidence

to ground TPI in 1990. Dutch found that

the FAA had acted BECAUSE the Air Force

cancelled the air cargo contract. The

ASBCA findings depend entirely on the

presumption that TPI could not fly and

therefore could not perform the

contract. The ASBCA should accept the

evidence and rule on _ the contract

dispute. But, with the fraud, the entire

ASBCA procedure should be thrown out and

the process begun again - or a default

judgement granted in favor of TPI.

NOTE: There is a further issue not

mentioned previously because it does not

iS

a aac eae

bear directly on the question of the act

of Judge Elmore. That further matter is

that TPI aircraft were SABOTAGED- while

on USAF bases. The USAF failed to

Provide protection required by law. That

matter was presented to the Supreme

Court in case 98-147 which was denied

certiorary on 5 October 1998. 98-147 is

incorporated herein by reference for the

Purpose of supporting the request for

Sanctions against government attorneys.

THE ACTION REQUESTED

A WRIT OF MANDAMUS:

The Supreme Court is asked to issue

a writ in the nature of mandamus

directing Judge Elmore to perform the

duty for TPI that he accepted on behalf

of the United States. Judge Elmore

should be required to rule on the motion

for reconsideration considering the

evidence which includes the DUTCH

MEMORANDUM .

16

DECLARATORY JUDGMENTS:

The Supreme Court is asked to issue

a declaratory judgment that Judge Elmore

is required to rule on the motion for

reconsideration considering the evidence

which includes the DUTCH MEMORANDUM. The

Court is further asked to include an

enforcing injunction.

The Supreme Court is asked to issue

a declaratory judgement that the DUTCH

MEMORANDUM , a government document

unchallenged by the government as to its

accuracy, is the definitive position of

the Government as to TPI and the matters

that are spoken to in that document.

The Supreme Court is asked to

further declare that the DUTCH

MEMORANDUM reflects that the FAA did not

have sufficient evidence to take the TPI

certificate.

The Supreme Court is asked to

further declare that the DUTCH

17

NN

MEMORANDUM proves that the FAA grounding

of the airline was caused by the USAF

contract cancellation which is therefore

proof that the contract termination was

without reasonable cause. The USAF

therefore is required to Pay TPI the

amount of twenty eight million dollars

for damages to TPI.

The Supreme Court is. asked to

declare that a PERSONAL sanction in the

amount of one hundred chucked dollars

Shall be assessed against government

attorneys as follows:

(1) Department of Transportation

attorney Roger Williams for sitting

beside a government witness before the

ASBCA and allowing and/or encouraging

him to commit’ perjury concerning the

contents of the DUTCH MEMORANDUM which

attorney Williams was entirely

familiar with.

(2) USAF attorney Edwin R. Babbitt and

18

Air Force attorney Major James A.

Blackwell, III. These two lawyers

represented the Air Force in the ASBCA

hearing with full knowledge of the

DUTCH MEMORANOUM and alloweda Civil

Service employee to commit per Jury.

A declaratory Jjudgment is asked

with reference to the details of Supreme

Court Case number 98-147 which is hereby

incorporated by reference. 98-147 shows

that the USAF had a legal obligation to

protect TPI from sabotage. (Note: the

government attorney told the Federal

Circuit that he "thought" the government

had no such responsibility ). The Court

is asked to declare that the USAF, on

the basis of the laws cited in 98-147,

DOES have a responsibility to protect a

contract airline operating on military

bases (unless the Government cares to

argue otherwise).

7

SUMMARY

Petitioner Frederick PR. Catchpole

asks the Supreme Court for the writ of

mandamus and for the declaratory

Judgments specified above. Where a

court grants a declaratory Judgment,

damages may be awarded. Danko v. Shell

229 a. am D.C.N.Y.1953, 53 F.Supp 886.

AS to the requests for Sanctions

against the government attorneys, it is

noted that any official] immunity of

federal agents has no application to a

Sult for declaratory relief. Rowley

V. McMillan, D.C.N.c. 1974, 502 F.2d

1326.

A suit will lie against a public

officer for acting beyond a statutory

authority, anda declaratory judgment,

together With an enforcing injunction,

furnishes a Proper device to test the

scope of his authority. cee a aS

1968, 390 F.2d 894, 182 GaGa. 621.

20

reversed on other grounds 89 $.Ct. 1501,

270 VULS. 2a ae 4.0.40 Se.

On appeal, if the Armed Services

Board of Contract Appeals fails to make

a relevant finding of fact which is

established by undisputed evidence, the

Court may make a supplemental finding.

U.S. v. Hamilton Enterprises, Inc.,

711 F.2d 1038 (Fed. Cir. 1983).

The Supreme Court will note that

the mischief of the attorneys cited and

the unwarranted Withholding of the

DUTCH MEMORANDUM and/or the evidence

that it reveals of the wrongs to TPI,

provided the opportunity for fraud upon

the Armed Services Board of Contract

Appeals, the Bankruptcy Court, the

District Courts, the Eleventh Circuit

Court of Appeals, The Federal Circuit

Court of Appeals and the United States

Supreme Court. The Georgia State Bar

Rules include reference to Keen v.

21

———

State, 164 Ga. App. 81, 296 S$.E.2d 91

(1982) and states that: “because it

interferes with the Proper

administration of Justice, a lawyer

Should not suppress evidence that he or

his client has a legal obligation to

Produce“. Citing Johnson v. Sta’

Ga. 506, 371 S.E.2d 396 (1988), the Bar

Rules state “A government lawyer who

has discretionary power relative to

litigation should refrain from

instituting Or continuing litigation

that is obviously unfair ... A lawyer in

4 civil action or administrative

Proceeding has the responsibility to

seek justice and to develop a full and

fair record, and he should not use his

Position or the economic Power of the

government to harass parties or to bring

about unjust settlements Or results.

22

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APPENDIX TABLE OF CONT ENTS

JUOGE ELMORE ’S OPINION .. as A~1

FEDERAL CIRCUIT OPINION .. A-é

JUDGE ELMORE’S LETTER ACCEPTIN iE

MOTION FOR RECONSIDERATION _ A

THE DUTCH MEMORANDUM ’

>A

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of-

TPI International Airways, Inc.

Under Contract No. F11626-90-D-0031

ASBCA No. 46462

Appearance for the Appellant:

Alan David Tucker, Esq., Brunswick, Ga.

Appearance for the Government:

Col. John M. Abbott, USAF, Chief Trial

Attorney.

Edwin R. Babbitt, Esq., Trial Attorney

OPINION BY ADMINISTRATIVE JUOGE ELMORE

ON APPELLANT’S MOTION FOR

RECONSIDERATION

TPI International Airways, Inc.

(TPI or appellant) has filed a_ second

motion and memorandum in support of the

motion, for reconsideration of the

Board’s 7 June 1996 decision (96-2 BCA

section 28,373; Recon. den. 96-2 BCA

section 28,602; affd., 135 F.3d 776

(Fed.Cir .1998 (table); cert.denied (U.S.

Oct. 5, 1998)(No.98-147). The Government

has filed a reply in opposition.

Familiarity with prior decisions are

presumed.

TPI contends that the Board’s de

novo determination that the Air Force

was justified in terminating TPI’s

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contract because TPI “was suspended from

flying by the FAA [Federal Aviation

Administration] and subsequently by the

CARB [00D Commercial Airlift Review

Board and] could not perform the

contract" should be set aside "for

fraud upon the court[sic]. " TPI argues

the exhibits to its memorandum 1 “gives

a different version of events’ than that

which the Board was privy to in the

decision

(end of page 1 of decision; following

notes are on page 1, at bottom):

1

Ex.A “Dutch Memorandum," dated 3 July

1993 and authored by Mr. Dennis E.

Dutch, Director, Office of

Investigations, Department of

Transportation’s Inspector General’s

Office;

Ex.B: unsigned affidavit allegedly

Provided by Captain Lee Dayton to Mr.

David Roman, President, Lab One;

Ex.C: unsworn signed statement from Mr.

Roman;

Ex.D: letter from Mr. Malte Lukas,

President, Spectro, Inc.;

Ex.E: affidavit from Mr. Gerald Healey,

an employee of United Technologies

Corporation.

(page 2 of ASBCA decision continues ):

making process"; that the memorandum

"gives credence to the probability that

the government agencies, including the

Air Force, employed a systematic pattern

of subterfuge and intimidation to ground

TPI"; that "Mr. Wright’s testimony about

the capability of Lab One equipment was

patently incorrect"; and that a "recent

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affidavit from Lab One ... shows” that

Captain Dayton apparently violated the

federal obstruction of justice law in

his contacts with them."

The Government, in opposition to

appellant’s reconsideration motion,

argues the motion is untimely; that

there is insufficient legal support for

the motion; and the Board’s decision was

supported by a preponderance of the

evidence.

Board Rule ~ a Motion for

Reconsideration requires “the motion to

be filed within 30 days from the date of

the receipt of a copy of the decision of

the Board by the party filing the

motion”. Appellant filed a motion for

reconsideration and received a decision

thereon. Our rules do not provide for a

second motion for reconsideration from

the same decision. Moreover, the

decision was rendered over two years ago

and has been affirmed by the Federal

Circuit. The Motion For Reconsideration

is dismissed.

Although the Board has never

adopted the Federal Rules of Civil

Procedure (Fed.R.Civ.P.), we do use the

Federal Rules as a guideline. Rule 60(b)

does provide for relief from final

judgement, order or proceeding on motion

made “not more than one year after the

judgment, order or proceeding was

entered or taken" for newly discovered

evidence which by due diligence could

not have been discovered in time to move

for a new trial under Rule 59(b), or for

"fraud (whether heretofore denominated

intrinsic or extrinsic aoe

misrepresentation, or other misconduct

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of an adverse party. “ Under Rule 60(b)

appellant’s motion is untimely.

Were the Board to accept

appellant’s second reconsideration

motion, which we do not do, the motion

would be denied. This Board’s original

decision was predicated on TPI’s

suspension from performing airlift

transportation services by CARB and the

voluntary surrender of its FAA issued

air carrier operating certificate

(findings 3, 4, 43, 47) 2. TPI did not

appeal the determination of the CARB

(finding 44). In this reconsideration

motion, as well as all of its prior

submittals, appellant has not cited, and

we are unaware of, any authority which

gives us the authority to review the

determination made by the CARB.

(note at bottom of page 2 as follows: )

2 Referenced findings of fact are found

in the Board’s 7 June 1996 decision.

(page 3 of the Opinion is as follows: )

The motion is dismissed.

Dated: 13 October 1998

S/Allan F. Elmore, Administrative Judge

I concur:

Mark N. Stempler, Administrative Judge

Vice Chairman, ASBCA

I concur:

Alan M. Spector, Administrative Judge

Acting Chairman, ASBCA

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I certify that the foregoing is a

true copy of the Opinion and Decision of

the Armed Services Board of Contract

Appeals in ASBCA 46462, Appeal of TPI

International Airways, Inc., rendered in

conformance with the Board’s Charter.

S/Donald D. Mills

For/ Edward S. Adamkewicz

Recorder, Armed Services Board of

Contract Appeals

COURT OF APPEALS FOR THE FEDERAL CIRCUIT

TPI Int’l. Airways, Inc., Appellant

Vv.

Department of the Air Force, Appellee

Case Number 97-1192

The Clerk appended the following

denial at the bottom of TPI’s motion

to set aside judgment due to fraud.

KK KKK

DENIED. WE DENY TPI’S MOTION TO SET

ASIDE THE JUOGMENT. THIS OOES NOT

PRECLUDE ASBCA FROM REOPENING THE MATTER

AS it Sees FIT. FOR THE COURT. BY:

S/JAN HORBALY, CLERK

DATE JUN 22 1998

FILED

U.S. COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

JUN 22 1998

JAN HORBALY

CLERK

ARMED SERVICES BOARD OF CONTRACT APPEALS

Skyline Six

5109 Leesburg Pike

Falls Church, Va 22041-3208

Telephone: (703) 681-8502

21 May 1998

Alan David Tucker, Esq.

P.O. Box 1332

Brunswick, GA 31521-1332

Edwin R. Babbitt, Esq.

Trial Attorney

Air Force Materiel Command Law Center

AFMCL/JAB Bldg. 11

2240 B Street, Suite 8

Wright -Patterson AFB, OH 45433-7112

RE: ASBCA No. 46462

Appeal of TPI International

Airways, Inc.

Under Contract No. F11626-90-D-0031

Dear Counsel:

On 11 May 1998, TPI filed a motion

for reconsideration requesting the Board

grant it the opportunity to submit a

memorandum in support of its contention

that the Board “reconsider its decision

on the basis of fraud upon the Court."

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EE

The Government filed a response opposing

the motion. After consideration of the

Parties’ Positions, and over the

Government ’s objection, appellant’s

request ls granted.

Appellant will, on or before 26

June 1998, file its memorandum at the

Board. The Government, should it decide

to do so, will file its response to

appellant’s memorandum on or before 24

July 1998.

S/Allan F. Elmore

Allan F. Elmore

Administrative Judge

Armed Services Board of Contract

Appeals

MEMORANDUM

U.S. Department of Transportation

Office of the Secretary of Transportation

Office of Inspector General

Subject: INFORMATION: Review of Report

of Investigation, TPI International

Airways, Inc.

From: Dennis E. Dutch, Director, Office

of Special Investigations [S/D.E.Dutch]

To: Patricia J. Thompson, Deputy

Assistant Inspector General for

Investigations

I have reviewed the Report of

Investigation (ROI) concerning JRI-4’s

investigation regarding allegations

against FAA officials who improperly

threatened to take certificate action

against TPI International Airways, Inc.,

on August 28, 1990. I have noted a

number of failures in the ROI to resolve

the allegations. They are:

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The gravamen of the allegations concern

whether the FAA had sufficient evidence

on August 28, 1990, to force TPI to

Surrender their operating specifications.

The ROI, in my Opinion, failed to prove

whether or not’ the FAA had sufficient

evidence.

The facts of the matter are that the FAA

and TPI officials had a meeting on

August 28, 1990, where the FAA told TPI

that it had sufficient evidence to close

TPI, and that if TPI did not surrender

its operating specifications, the FAA

would obtain a court order to close

them. The reasons used for this action,

according to the FAA, was that the

military had revoked TPI’s contract, an

incident in Aruba where engine parts

fell of f a plane, and records

discrepancies involving training and

maintenance Procedures. TPI President

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Fred Catchpole subsequently surrendered

TPI’s certificate, figuring that the FAA

would have to later specifically

enumerate what TPI did that was so wrong

for the FAA to threaten certificate

action. The FAA has never specifically

told TPI the reasons for their action.

Since then, Catchpole has vehemently

argued that the FAA’s actions were not

supported by the facts, in some

instances, the FAA lied and/or covered

up the facts, and the OIG’s

investigation failed to find these FAA

discrepancies.

The failures of the ROI, in my opinion,

are as follows:

version of what happened at the August

28 meeting (attachment 24) differs from

ole’s records (attach

assistant (Cattachme

nt 1) a

nt

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25).

Both TPI officials made reports as to

what occurred at the meeting, and

neither state that the FAA used the

military and Aruba events as reasons for

the revocation of TPI’s certificate. The

ROI also failed to note who from the

FAA wrote their memo, when it was

written, and the date it was written (it

is undated ). Also, according to

Catchpole, in depositions, nobody from

the FAA will take credit for writing the

memo of the meeting, and al] attendees

deny taking notes.

2. Paragraph 2 of the ROI alleges

Significant FAA violations found during

an in-depth inspection by the Miami FSDO

in 1989 and 1990 against TPI which

contributed to FAA’s determination on

August 28, 1990 that TPI was unqualified

to hold a certificate.

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get IPI through its pilots."

The FAA revoked the testing authority of

Pilots Headlee and Pulley. In the

letters of revocation, one of the

reasons used by the FAA to revoke their

authority was a history of violations by

the two individuals.

In fact, Headlee and Pulley had never

been individually Violated. TPI was

once violated, which in turn, caused the

revocation of all of TPI’s pilots

testing licenses, including those of

Headlee and Pulley but neither Pilot was

ever violated because of individual

misconduct. The ROI failed to note this

fact

Also, lit appears that FAA inspector

Brinker, and other FAA inspectors from

Atlanta may have been Pre-disposed to

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violate TPI and/or its pilots, and the

ROI did not address this issue. FAA

inspector Bruce tested Headlee, and

after the test, did not inform Headlee

that he had failed Subsequently, TPI

Operations Director Jack Orr received

a phor call in the AM of July 31, 1990,

from Brinkey who informed Orr. that

Headlee had failed. In the PM of the

same day, Bruce telephoned Headlee for

some additional information that Bruce

needed to finish his report on the test,

ind at that time stated that it was not

true that Headlee had failed. Fifteen

minutes later, Brinker phoned Orr to

tell him that Headlee had failed.

Becau Headl« was not qualified to

give exams, Pulley was revoked because

there wa nobody to ive him a timely

exam

The ROI failed to interview Orr, Headlee

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and Pulley.

Other events showing Pre-disposition

were also not addressed. They are:

FAA inspector Glenn allegedly told

Headlee that “we are out to get the

company through the Pilots. This was

never addressed in the ROI.

Bruce allegedly told a client of

TPI at Tinker Air Force Base that they

were under orders to put “the final

nails in TPI’s coffin." In his

interview, Bruce admitted to making

the Statement, but he Stated the

Statement was used out of context.

The “under Orders" was nevey addressec

4. The ROI failed to Properly address why

the FAA changed its enforcement attitude

after August 7, 1990.

A-16

The interview with Berry, the regional

flight standards manager, was poor

(attachment 6). In his interview, Berry,

stated that TPI had serious problems,

but the FAA would work with TPI to get

it into compliance in a spirit of

was not developed in the ROI.

5. FAA inspector Brinker reversed

himself to the detriment of TPI, which

the ROI failed to resolve.

Other than the military and Aruba

incidents, the reasons the FAA used

against TPI to attempt to close them

down were poor manuals and outdated

teaching materials. Catchpole states

that months before, Brinker, the main

FAA inspector responsible for TPL,

gave them until 1990 to get into

compliance, but on August 28, this

was used against him. The same applies

Ais

for teaching, using certain operating

specifications. The method used by TPI

had been approved by Brinker, but he

later reversed himself in front of FAA

management.

Berry’s interview mentions that he does

not recall if he received pressure from

above as a result of the cancellation of

TPI’s military contract. Again, the

interview did not follow this lead

sufficiently.

Factually, the military did not cancel

TPI’s) contract until August 29, 1990,

meeting with Catchpole. if oral

communications occurred, which caused

the FAA to take action, again, the ROI

failed to develop this.

7. The FAA memorandum of the August 28

meeting notes that the two main reasons

for action against TPI was the

cancellation of the military contract,

and the recent incident in Aruba of one

of TPI’s planes.

A

As previously stated, the military

contract was not cancelled until August

29

Concerning the Aruba incident, the

involved plane had engine problems which

lead to the loss of some of the engine

parts. The ROI failed to note that the

engine had recently been repaired, and

the repair station that did the repairs,

when asked for the repair records,

produced typed copies, stating the

originals had been destroyed. This is

particularly disturbing, especially

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considering the OIG’s knowledge of the

suspected unapproved parts Problem, and

that engine repair Stations are

Significant contributors to the

problem, uSing bogus parts internally

in the engines, and then certifying

them as meeting FAA approved Standards.

The ROI noted that the engine had been

involved in a previous crash, and that

TPI owned the plane at the time. The ROI

infers that Catchpole knew this fact. In

fact, Catchpole was unaware of this

fact, having come into TPI in 1989. The

engine was involved in a crash in 1986.

The records examination should have also

attempted to follow what contacts were

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made with the military which lead the

FAA to to change their attitude against

bE cat

9. Inspector Brinker, in his affidavit,

to surrender its certificate was its

inability to maintain its aircraft. The

Brinker’s entire affidavi

training records discrepancies, not

maintenance problems.

In short, the FAA’s attitiude towards

TPI changed. They were finding

violations against TPI, but there did

not appear to be an attitude that the

violations were serious enough to merit

revocation of TPI’s certificate.

Something changed the FAA’s attitude,

and I believe it was the military’s

action. Suddenly, the FAA started to use

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the violations it had Previously found

against TPI, and the ROI failed to

determine why.

The ROI never specifically developed the

FAA’S contact with the military; it

never interviewed witnesses who

allegedly had information that the FAA

was “out to get TPI"; it failed to

notice differences in the FAA’s version

of the August 28 meeting with TPI

official’s versions; who authored the

FAA report and the date it was written;

it failed to address the alleged change

in actions by Inspector Brinker; it took

credence in the typed copies of the

repair of the engine Parts; and it

failed to examine FAA records to

determine if the files, as of August 28,

supported the charges against TPI.

There also appears to be new evidence

which appears to Support Catchpole’s

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position. It is as follows:

1. In a deposition taken after the

revocation of the certificate, the FAA

Regional Counsel admitted that at the

time of the August 28 meeting, the

normal procedure for the FAA to take

regarding the number of violations

alleged against TPI would be civil

penalties, not certificate revocation.

N)

FAA personnel have admitted to

Catchpole that the FAA was wrong on

August 28 when it asked for TPI’s

certificate.

3. Catchpole seems able to defend

maintenance discrepancies found by the

FAA. The ROI did not resolve the FAA;S

position with Catchpole’s explanations.

I believe that the ROI did not properly

address’ the ma jor important issues

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raised by Catchpole, and there are

enough unanswered questions, especia ly

considering the new information recently

alleged, to have JRI-4 specifically

address the questions raised by this

review. Once those questions have been

answered, then a _ better determination

might be able to be made regarding the

facts.

ICOKOK OK * OKO

NOTE: This is the end of the DUTCH

MEMORANDUM. The underlined parts of the

the original document as written by

DENNIS €. DUTCH, Director, Office of

Special Investigations, Office of the

Inspector General, Office of the

Secretary, Department of Transportation.

Mr. OUTCH personally performed the

review that resulted in his memorandum.

ODutch’s signature was by his name on

Page 1 of the memorandum.

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