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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998

## Text

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
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Rae kb ee cee ee ee ene ae eee 23
APPENDIX TABLE OF CONTENTS .....cccces 24
Judee Elmore’s- Opinion.
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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

A-1

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

A-2

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

A-3

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

A-4

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."

A-7

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:

A-9

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

A-10

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

A-11

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.

A-12

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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

A-14

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

A-15

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

A-19

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

A-20

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

A-21

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

A-22

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

A~23

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.

A-24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1317%3A1. Public record. Not legal advice.