Skyhook

FORTY FOUR MONDAY AFTERNOON, DAY 8 FEDERAL DISTRICT COURT FOR THE DISTRICT OF COLUMBIA WASHINGTON, D.C.

“Miss O’Brien?”

Federal District Judge Jacqueline Walton had entered her courtroom moments before, nodding to her clerk and court recorder before sitting heavily in her chair.

“Very well,” the judge began. “We have before us the emergency matter of Rosen versus the United States, and I see counsel for Mr. Rosen is present.”

“Yes, Your Honor,” Gracie said, getting to her feet and standing uneasily behind the table normally used by prosecutors in criminal cases and plaintiffs in civil matters. She saw the judge staring directly at her from the other side of the elevated bench and met her gaze eye to eye, working hard to give no hint of how badly her insides were squirming in the heat of that judicial spotlight. The isolation was a splendid agony — a rare opportunity for a young lawyer to argue a case unchallenged by the professional wrath and constant interference of an opposing lawyer. But the advantage was all but neutralized by the intense isolation of being the sole lawyer in the courtroom. She’d been successful in fighting her way to this point, but the knowledge that the judge could bat the case away like a bothersome gnat with a flick of her gavel was a worrisome undercurrent, an unacknowledged elephant sitting on her chest.

The rows of seats in the gallery behind Gracie had no occupants, with the sole exception of April.

Gracie simulated a relaxed smile and cleared her throat.

“May it please the court, I am Gracie O’Brien, counsel for the petitioner, Captain Arlie Rosen. We are herewith presenting an emergency petition for injunctive relief in the form of a temporary restraining order, a show-cause order, and a request for an emergency show-cause hearing, all filed against the United States government, and specifically the Federal Aviation Administration, the Department of Defense, the Department of Commerce, and any other department or entity of the government having knowledge of, or involvement in, the purposeful and illicit salvage and removal of aircraft wreckage belonging to the petitioner.”

The judge was nodding, her eyes on the paperwork before her.

“Miss O’Brien, is this an admiralty case, then?”

“In part, Your Honor, yes, but mostly it is a case in equity. Admiralty law only applies at threshold to the unauthorized nature of anyone disturbing the aircraft wreckage wherein there has been no abandonment, as was the case here.”

“You’ve alleged that it’s admiralty jurisdiction and equity jurisdiction concurrently, and the two cases you want to combine appear to both be in an equally confusing status.”

“Your Honor, the first case against the Coast Guard—”

The judge waved a hand at her in dismissal. “I can read the pleadings, Counselor, such as they are.” She removed her reading glasses and leaned forward, her face stern. “You come before this court with an armful of scattergun filings to force the government to do your will on the premise that great harm will occur if I do not immediately grant the requested relief. That’s quite a frontal assault, and it carries with it a requirement for very convincing allegation of facts, not to mention at least some coloration of law. Having said that, first we need to get to the matter of whether you are even admitted to practice before this court.”

“Your Honor, my application is literally before you, among the papers in this case. For the record, I’m admitted to the bar in the State of Washington and in the federal district courts for the Western District of Washington, and I’m requesting emergency admission for the purposes of this matter.” Jacqueline Walton shook her head and laughed in response. “You’re presuming a lot, Miss O’Brien, coming in here and asking to be automatically enrolled and expecting us to shove aside the normal procedures.”

Gracie felt her mind shift to a higher, faster level of thinking. She had researched Judge Walton the night before and knew she was tough, but she had naively let herself hope that a woman appearing before a female judge might elicit a modicum of sympathy.

“Your Honor, I would never presume to do so if this were not truly an emergency matter legitimately requiring the equity powers of this court.”

“So you’ve said. So, tell me precisely, Counselor, why you believe there is a threat of imminent harm here that requires me to act instantly to admit you to this bar as well as enjoin the entire United States government from doing such a wide variety of things?”

“All right, Your Honor, I—”

“I mean, if some branch of the U.S: government has taken the time and trouble and spent the money and resources to raise the wreckage of your client’s downed aircraft, what possible evidence do you have that leads you to the bizarre conclusion that they may be about to destroy it?”

“It’s not destruction of the wreckage that concerns us, Your Honor. It’s the possibility that in storing it, shipping it, hiding it, or otherwise retaining possession of it, they may move or otherwise adulterate exculpatory evidence putatively contained therein, whereas the intervention of evidence which, if intact—”

“Miss O’Brien, I do not tolerate convoluted legalese in this court when English will do nicely. Rephrase what you were saying so a normal human can understand it.”

“Yes, ma’am.”

The judge shook her head in irritation. “‘Ma’am’ is a contraction for ‘madam,’ Counselor, and I am not, nor have I ever been, a madam. I am a judge. A long-suffering one in some cases, but a judge nevertheless, without regard to gender. You may address me as ‘Judge’ or ‘Your Honor.’ You will not address this court as ‘ma’am.’ Is that clear?”

“Yes, Your Honor. I apologize.”

“And for the record, I am approving your application for admission, but I’ll tolerate no flowery language. They may like that sort of verbal froth out in the ninth circuit, but I don’t tolerate it here.”

Gracie nodded, working hard to hide the confusion she felt, all her carefully constructed and practiced arguments suddenly verging on disarray.

Okay. Plain English, whatever that means.

“Judge, the FAA has revoked Captain Rosen’s pilot’s license based on the accusation that he crashed his airplane by flying recklessly. Captain Rosen, my client, in fact, had a propeller blade break in flight, creating so much damage that he couldn’t control the airplane. The broken propeller caused the crash. Absolute irrefutable evidence of the broken propeller was sitting on the bottom of the Gulf of Alaska with the wreckage of the aircraft. That evidence would immediately clear my client of the main charge against him. But the government has chosen to disturb and remove that wreckage. In the process of raising the wreckage and taking it away, the government has endangered my client’s ability to clear himself of the false charge of reckless flying by altering the physical evidence. If the physical evidence of the wreckage at this moment still shows his innocence, then it is vital that no one be allowed to… to… mess with that wreckage any further.”

The judge raised an eyebrow and cocked her head, the slightest hint of a smile on her face.

“Did you really say, ‘mess with,’ Miss O’Brien?”

“Yes, Your Honor. You directed plain English, and while that expression is colloquial, it’s plainly… ah…”

“Plain English. All right. Continue.”

“Complicating the urgency, Your Honor, is the fact that we have been unable to discover which agency of the U.S. Government has the wreckage, where the wreckage is, and what is planned for it. The admiralty portion of this case has to do with the right to disturb or take possession of the wreckage of an airplane in international waters to begin with. First, there has been no abandonment of the wreckage by my client. Second, my client retained a salvage firm. Third, that salvage firm was illegally denied access to the waters over the wreckage by the Coast Guard. Fourth, although ownership of any registered U.S. aircraft and the address of record of that owner can be established in five minutes over the Internet by simply entering the tail number, and despite the fact that the FAA and the NTSB know well who owns that aircraft and where to find him, there has been no effort by the government to notify Captain Rosen of any intent to… disturb the wreckage.”

“You may use the phrase ‘mess with’ again, if you like, Miss O’Brien.”

“Thank you, Your Honor. ‘Disturb’ also works for me.”

“Go on.”

“So, we have a case of unexplained misconduct on the part of some agency of the government in failing to follow any of the established rules for dealing with the non-abandoned wreck of an aircraft, and we have a great possibility of massive harm to Captain Rosen’s career and finances if the physical evidence that could clear him of the reckless flying charge is destroyed or compromised.”

“There are other FAA charges against your client, I see.”

“Yes, Your Honor. The FAA alleges he was drinking while flying. The blood analyses done at Anchorage Providence Hospital immediately after admission completely disprove that. The third allegation is that he was flying under visual rules, flew into instrument weather conditions, and failed to turn around fast enough. We will be able to completely disprove that when some due process is afforded my client.”

“Are we now entertaining a constitutional challenge, Miss O’Brien? Are you alleging the government is acting without due process?”

Gracie caught the intent of the judge’s question just in time. This was no joking reference.

Careful, Gracie cautioned herself.

“Your Honor, there is only one solitary incidence of constitutional due process that has been followed correctly up until you agreed to hear me today, and that was the formal sending of the FAA’s notice of emergency license revocation. There has been no due process regarding the snatching of the aircraft wreckage, nor in the absence of notice of such intent, nor in the refusal to tell us where the wreckage is. Additionally, the reason for specifically proceeding against the FAA today is to prevent a continuation of what, in the plainest English I can manage, is a pure railroad job against Captain Rosen. The FAA inspector in Alaska held an extremely hostile interview with him, in his hospital room, on the afternoon of Captain Rosen’s rescue and made it clear he was going to try to revoke his license with no supporting evidence. The conduct of the government since then has been to frustrate perhaps the most important need my client has, which is to collect and protect the evidence with which to defend himself and his right to practice his career. In other words, Your Honor, the government of the United States has actively prevented my client from showing or proving his innocence, not only in the short term, but… because of the serious possibility of destroying the exculp — I mean, because they may ruin the evidence, in the long term as well. So, even if we were able to secure normal due process, it may not come in time.”

“That’s it?” the judge asked.

“Yes, Your Honor. I believe so.”

“Well, you’d best be sure. Do you have more to add to this oral argument or not?”

Gracie sighed and looked down for a moment, shuffling the papers before her and trying desperately to find anything else that she hadn’t argued. It was as if she were back in law school trying to defend her interpretation against the impending onslaught of her constitutional law professor, who had been one of the most frightening, arrogant, and devastating humans she’d ever encountered.

What am I missing? It was the same question she’d asked herself in those classes as the professor paced and rolled his eyes at her stupidity.

Oh, God! Of course! “Your Honor, I’m sorry. I almost left out the basis of our adding the FAA to the TRO request, and as a respondent in the show-cause petition.”

“By all means, go ahead, Miss O’Brien.”

“Thank you. Specifically, we have factual reason to believe that the FAA, directly or through various staff members, inspectors, or other personnel, is actively attempting to tamper with, hide, or destroy evidence that would invalidate its enforcement actions against Captain Rosen. We believe the FAA is directly or indirectly involved in taking the wreckage, and we have reason to believe that it is hiding FAA air traffic control radar record tapes that would show the presence of another aircraft at the very place and altitude where Captain Rosen’s aircraft lost the propeller blade. This belief is buttressed by the Coast Guard’s confiscation of the videotapes Captain Rosen’s daughter made of the wreckage before being ordered off the site, and from the fact that FAA personnel in Anchorage lied to Ms. Rosen about the ability of their radar to track an aircraft flying at the low altitudes flown by Captain Rosen just before the accident. In brief, Your Honor, we believe that there may have been another aircraft operated by, or for, an arm of the U.S. government with FAA knowledge, which may have struck a glancing blow to Captain Rosen’s aircraft, leading to the loss of the propeller blade and thus the loss of the aircraft. If so, the aggressive moves to recover and hide the wreckage, suppress any videotaping of the wreckage, suppress radar tapes as well as misrepresent their contents, form a prima facie pattern of official deception. The purpose of this deception is unclear. It may be for the purpose of supporting the FAA’s misguided attack on Captain Rosen, or it may be for the purpose of hiding or keeping secret some other operation that intersected Captain Rosen’s flight path. In any event,” Gracie summed up, “the career of an honorable and senior airman hangs in the balance with massive monetary and reputation loss, and the FAA should be denied the ability to collude in any manner whatsoever in the suppression of evidence.”

“Now are you through?” the judge asked.

“Yes, Your Honor.”

“All right. Counselor, the level of proof required to make a prima facie case that any arm of the United States government is engaged in illicit or illegal cover-ups is very high, and it is a burden I expected from the beginning you would have a difficult time reaching. Governmental agencies — and you’ve sued the Coast Guard and the U.S. Navy as well as the FAA here — seldom get the idea they can abandon the law and all accountability. Thus, if some arm of the military, for instance, did take the wreckage of your client’s aircraft, there is no justification for automatically assuming that it was done illegally or for nefarious purposes, or that they will so mishandle that wreckage that evidence will be destroyed. Hollywood may make such assumptions, but rational jurists and courts do not. Second, there may be very good reasons for confiscation of an underwater videotape that are wholly unrelated to any desire to help the FAA prosecute an individual pilot, and again there is a high burden on your shoulders to make that case sufficient to justify a TRO and the attendant hearing. The fact that these things occurred is not enough. Finally, a tough FAA inspector offending your client with tough questions does not necessarily constitute prejudicial bias in contravention of due process, nor does your argument with respect to the FAA’s involvement make much sense to me. They’ve taken your client’s license because he had an accident, and they deem it to be a result of multiple violations. Despite the inconvenience of his being on the ground for awhile, there is a due process procedure for appealing that action, and you may be wasting time in starting that formal process by being here. The fact is that you’ve given me little reason to conclude that the FAA knows anything about the movement of the wreckage, what is or is not on radar tapes, or the presence or absence of other aircraft, other than the fact that their enforcement action might benefit from the absence of the alleged proof you claim is in the wreckage. These are rabbit trails leading in all directions, and yet you want me to accept them in a way that presumes essentially evil intent on the part of the FAA, the Navy, the Coast Guard, and God knows who else. I’m sorry, Miss O’Brien, but I—”

“Your Honor, may I add one more thing?” Gracie said suddenly, the risk of angering the judge with an interruption paling against an impending rejection of everything Gracie had tried to accomplish.

“Oh, must you, Counselor?”

“Yes, Your Honor. In direct answer to your points.”

Judge Walton sighed and studied Gracie’s face for a few seconds. “Very well. Go ahead. Briefly.”

“The burden in an equity request for a TRO is on the moving party to state a case that, if factually true, would constitute grounds for injunctive relief. I respectfully suggest that Your Honor is raising that burden higher than the law requires only because this involves the government, and that by so doing you are demanding that I state not only a potentially viable case, but one that logically convinces this court as well. That is not the requirement I have to meet. In fact, I believe I have met the burden, Your Honor. Your detailed examination of the testimony and pleadings are to be made in the show-cause hearing, not here. There is where the court may determine whether the alleged facts I have presented are sufficiently credible. In other words, I ask the court — I plead with the court — to go ahead and issue these TROs and permit the government to answer, before simply sweeping these actions aside, leaving Captain Rosen no possible recourse if our allegations are true. The one operable question, Your Honor, should be simply this: If, by some strange anomalous and unprecedented twist of fate I’m right and the FAA has illicitly colluded through other agencies to deprive Captain Rosen of his right to due process, his right to preserve evidence, and his right to exonerate himself, is justice in any way served by cutting off the process at this point?”

Gracie felt her heart fluttering as she watched the fingers of the judge’s right hand drumming on the bench, her other hand cupped under her chin as she leaned forward and stared at Gracie in thought. There was dead silence in the courtroom, except for the hiss of the air-conditioning system and the final keystrokes of the court recorder, who looked up now, first at the judge, then at the lone lawyer standing and waiting nervously for the ruling.

Another sigh from the bench. The judge’s hand left her chin. The drumming stopped, as did the movement of time in Gracie’s mind.

“Miss O’Brien, that argument violates my ban on flowery language, but it did contain a certain symmetry of thought. I have no doubt that my initial impression will be borne out, and that the dark conspiracies envisioned here will be shown to be nonexistent. However, in a phrase, you’re right. I was about to hold you to a higher standard than necessary. I’m very much of the opinion that none of these TROs should be granted, but… your question of whether justice is served by dismissal is sufficiently provocative to justify a conservative course here. So, I will issue these TROs and — though it will infuriate my clerk and consternate my fellow members of this bench by interrupting the normal flow of business before this court — I’m going to set a show-cause hearing for tomorrow morning at ten. We’ll see what the FAA and the rest of the government has to say.”

“Thank you, Your Honor.”

“I seriously doubt these TROs will survive their answers, but we shall see.”

When the judge had signed the orders and left the courtroom, Gracie collected the copies from the clerk and walked carefully toward the door with April at her side.

“Gracie, what…” April began, but Gracie put a finger to her lips to quiet her until they were outside in the foyer. They found a bench to sit on and Gracie plopped down, her hand shaking slightly as she held the signed orders.

“That was magnificent, Gracie!” April stage-whispered excitedly, shaking her upper arm.

Gracie’s eyes were closed, her breathing metered as she motioned to wait. Her eyes fluttered open at last and she looked at April and shook her head.

“We almost lost in there.”

“I know, but you yanked her back to reality and won!”

“It’s… I mean, don’t count any chickens, April.”

“We’ve got them on the run now, though. Right? Hey! Let me see at least a little victory smile.”

Gracie nodded, a quick smile flickering across her face, then fading. She looked at April, her eyes haunted.

“She’s right, you know,” Gracie said.

“Sorry?”

“The judge. The government will respond like an anaconda with a blowtorch to its tail. We’ll get a half dozen assistant U.S. attorneys in here tomorrow morning to buttress the judge’s opinion that this whole thing is a delusional construct of a panicked young lawyer’s mind. They’ll have her convinced I’ve been reading too many mystery thrillers. They’ll say they don’t have the wreckage, they have no idea what I’m on about, and they’ll claim that the FAA has virtually no knowledge of the allegations we’ve made, other than the fact I’m defending a dangerous man whom they’ve saved the public from by the license revocation. They’ll point out that the blood tests in Anchorage proved nothing because too many hours had elapsed since the accident. They’ll lean heavily on the visual-flight-into-instrument thing, and it’s the majesty of the government’s word against ours. They’ll slide, dodge, lie, wink, and roll their eyes, and in the end, she’ll throw it all out.” Gracie sighed. “We got the wrong judge.”

“Wait a minute. Won’t they have to at least cough up the tapes the Coast Guard took?”

“Oh, they’ll have a story about those tapes being shipped in from Anchorage, but they’ll be erased by the time we ever see them.”

“Gracie, good grief! Listen to you!”

Gracie shook her head and looked down. “I’m sorry, April. We have to face reality. The only way we’re going to fight this is the traditional way, using the normal FAA and NTSB appeals method. I’ll have to call the captain—”

“Not with a defeatist pity party in progress you won’t!”

“It’s not a pity party. But… well, okay, maybe we can wait awhile.”

“You’re not going to go defeatist on me, Gracie.”

“I’m not trying to be defeatist. I’m trying to be practical and think ahead to the inevitable. This… this was a good gamble, but we’re going to lose it. I’m not saying it wasn’t the right thing to do.”

“Wait… look. Think about your own logic in there. I thought you were brilliant. But go further. If the FAA and the Coast Guard and the Air Force and Navy as a team really are guilty, as we know they are, what would you expect their lawyers to do tomorrow?”

“Sorry?” Gracie looked up, only half listening to the pep talk.

“Actually, you just told me what they’d say in great detail. So why not take the wind out of their sails and start your argument in the morning with their arguments. Give the judge their arguments before they do, and dismember every one of them. You get to go first, right?”

“Yes.”

“Then label the arguments you know they’re going to make for what they are. Lies and dodges, smoke screens and clever side steps. Convince the judge that they’re simply avoiding answering the real questions in hopes she’ll dismiss our case just on their say-so.”

April saw the logic take root as Gracie looked up and nodded, slowly at first, a faint smile returning to her face.

“That could help, April.”

“See?”

“It really could. But I’ve got about a week of work to do in one day.” She got to her feet. “Starting with the not so insignificant task of figuring out how to serve notice on the appropriate government officials. Let’s go.”

“Back to the hotel? Shouldn’t we eat something first?”

Gracie was shaking her head, her energy returning. “Go without me. It’ll take a few hours to get these served. When I get back, just toss some candy bars and coffee in every now and then, and no matter how much I yell or beg or plead, don’t let me out.”

“I think I’ve heard that line before.”