Skyhook

FORTY SEVEN WEDNESDAY MORNING, DAY 18 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA WASHINGTON, D.C.

After a near-sleepless night of worrying about April and her parents, Gracie had managed a few hours of sleep. There had been no trace of Arlie and Rachel or their car, and the search was becoming urgent in the wake of the apparent break-in at their home.

At just before three A.M. April’s cell phone had rung with an electronically challenged version of Arlie Rosen’s voice on the other end.

“Dad! Where are you? Where’s Mom? Are you all right?”

“I’m on the satellite phone, April. I don’t have much battery. Your mom and I are okay, but we escaped in the Cherokee.”

“Where are you?”

“I can’t tell you that, but you and Gracie are in grave danger! Someone’s trying to kill us, and they’ll come after you. Have you dropped those suits?”

“We’re… working on it.”

“Oh my God, April! Listen to me. You have to make Gracie withdraw those lawsuits. We’re… up against something, we can’t fight. Tell her… wait a minute.”

“What, Dad?”

The voice changed to a whisper. “There’s someone sneaking around outside this place.” She could hear him whisper something about his gun to Rachel before the line went dead.

April rifled through her PDA trying to find the number of the satellite phone her father had purchased a year before, but it was no use, and the phone refused to ring.

Gracie had given up and gone to bed at four, leaving April on watch for another call. She awoke at seven feeling slightly numb but hopeful, the optimism largely slipping away as April confronted her with the decision that the suits should be withdrawn.

“Why?”

“I told you what he said. Someone’s trying to kill them unless we stand down. And we could be in danger, too.”

“Not in a federal courtroom. I refuse to believe that.”

“Gracie, I have to order you to have them dismissed.”

She shook her head, watching April’s eyes flare in shock.

“Gracie, no! You’ve got to listen to him.”

“If he calls, I’ll listen. You don’t have his power of attorney. Rachel does, and her last instructions to me were to go ahead. You agreed, too.”

“You’re not going to listen to me? I can’t believe this!”

“I’m listening, but I can’t stop this, and I wouldn’t if I could.”

“You’re going to get us killed!”

“No, I’m not! You’re panicking, April. Whoever has threatened the captain is bluffing.”

“The house was ransacked!”

“You said yourself the sheriff wasn’t sure, and… and… your folks weren’t kidnapped. They ran.”

“Gracie, Dad said—”

“He didn’t say it to me! Okay? That’s the bottom line. We’re going to do every damn thing possible to get his license back, and I have no reason to believe that isn’t the right course of action. Now, get a grip!”

April stared at her for several long seconds before swallowing hard. “You think?”

“Yeah, I do.”

April nodded, her voice soft and subdued. “Okay.”

As Gracie pushed through the ornate double doors of the appeals court, the building itself did not seem threatening, but everything within — from the polished marble hallways to the spartan decor — was a reminder of the might and importance of what went on there. And here I am, Gracie thought, attempting to bend the federal government to my will. It was as if she had decided to attack a giant stone citadel with nothing more than logic, a hastily written brief, and her own interpretations of the law.

Gracie entered the courtroom with a squadron of butterflies performing loops in her stomach. Three judges were seated at the bench, each in an oversized leather chair. The one on the right held the lanky frame of Judge Williamson, instantly recognizable from the night before. The other two held men with stern faces belonging to Chief Judge Joe Briar and Judge Alex McNaughton.

April squeezed her elbow and broke away to take a seat in the first row of the gallery. Gracie seated herself at the counsel’s table, trying not to pay too much attention to the government lawyers assembling on the opposite side, and trying to ignore the fact that there was one of her and five of them.

It’s okay, she told herself. You’re ready for this!

She would have only five minutes to argue the case and convince the men behind the bench, and yet, if she could stick to the words she had practiced, five minutes would be enough.

When the Rosen case was called, Gracie got to her feet and moved to the lectern. There was a small green light glowing inside, and when it turned yellow, she’d been cautioned, she would have one minute left. When it turned red, she would be out of time. “May it please the court,” she began, “I am Gracie O’Brien, counsel for Captain Arlie Rosen, the plaintiff and petitioner in this matter. We are appealing the dismissal of the matters in my brief by the district court, and—”

“We’ve read your brief, Counsel,” Judge Briar interrupted, somewhat laconically. “And it appears that your trial court judge, Judge Walton, clearly felt she lacked the specific evidence to justify upgrading the restraining orders to injunctions. That type of finding of fact we leave to the lower court, yet you’re arguing here that her interpretation was wrong as a matter of law, because in a case for emergency injunctive relief, a court must seek to prevent imminent harm even before there is evidence that such a threat truly exists. If that were true, wouldn’t it mean that any allegation of potential harm, no matter how bizarre or unsupported, would require a court to issue an injunction?”

There was a small noise behind her, and Gracie thought she heard someone moving out of the seats and back up the aisle. She glanced around involuntarily and realized with a start it was April.

“Counselor?” Judge Briar said as he tried to recapture her attention. “Are you with us?”

Gracie turned back immediately. “Sorry, Your Honor. No, in fact, we are merely stating the essence of equity jurisdiction.”

“But this isn’t entirely equity, is it?” Judge McNaughton interjected. “I believe part of it is admiralty as well.”

Gracie quickly scribbled a note on where she’d been in her argument. Appellate judges almost never permitted the lawyers to talk without interruption, and it was terribly confusing.

“All three of the combined actions, Your Honor,” Gracie began, “were primarily equity actions, with only a reference to a particular principle of admiralty law. Now—”

“Wasn’t this crash in international waters, Miss O’Brien?”

“Yes, Your Honor, it was.” Gracie paused, but there was no followup question. She took a deep breath and continued. “Captain Rosen is asking the court to block a harmful act, and such a request rests primarily—”

“Which request?” Judge McNaughton asked. “We’ve got three actions here.”

“All of our requests here, Your Honor, are based on the significant potential and ongoing harm to Captain Rosen’s career, his health, and his property interests. To justify a restraining order, I am required to show that if not restrained, the respondent will take actions or continue actions that will cause substantial and irreparable harm. But the burden then shifts to the respondent at the show-cause hearing to show by a preponderance of evidence that the petitioner’s factual claims are wrong. If the respondent fails to meet that burden, the restraining order becomes a temporary injunction. That’s the way we should have been treated by the lower court.”

“And what again was this threat, Miss O’Brien?” Judge McNaughton asked.

April had remained at the back of the courtroom listening to the interruptions as Gracie began describing how Arlie Rosen was being harmed. April glanced down once more at a note that had been handed to her.

April pushed through the double doors as quietly as she could, leaving Gracie’s voice behind and spotting the writer of the note immediately some twenty feet away as he sat and waited on a bench. She felt her jaw drop in amazement. “Ben Cole! What on earth are you doing here?”

He stood and took her hand, shaking it. “Trying to make up for being cowardly.”

“But, how on earth did you find us?”

“I called your dad on Sunday. He told me where you’d be. Am I too late?”

April involuntarily glanced behind her at the closed double doors, then looked at him. “No! It’s just starting, but… we lost yesterday, and this is what Gracie calls a very limited appeal.”

“I’m ready to testify, Miss Rosen.”

She stood, feeling stunned, and immediately wondering how to transmit the information to Gracie not a hundred feet away.

“Follow me into the courtroom,” April said.

Ben hurried ahead of her and held open the door, following her inside to a spot behind the counsel tables. She saw Gracie glance around at her and raise an eyebrow. April pulled her notebook out and wrote a note.

April leaned over the divider and poked Gracie with the folded note until she reached down and took it, reading it quickly before glancing back to verify Ben was really there.

Gracie cleared her throat and looked up at the judges. “In the district court yesterday, the defendants were allowed to shift the burden of proof illicitly to Captain Rosen by doing little more than declaring that what we said wasn’t true. They offered no proof that government vessels had not been in the recovery area. They offered no reason for confiscating April Rosen’s videotape of the wreckage. They offered no explanation of why FAA radar tapes have been withheld, what’s on them, and whether a second aircraft, which may have clipped Captain Rosen’s aircraft, was in his way that night. They merely came in and said, ‘We deny everything,’ and on that basis alone, their word was taken as being more trustworthy than his. I submit that as a matter of law and equity, that is incorrect, and by itself constitutes an error requiring reversal and reinstatement of the TROs.”

The light inside the podium was already yellow. Gracie glanced at it now and watched it turn red. Jim Riggs took the podium and she sat down to take notes, looking for ways to attack his arguments when the government’s case was through.

She’d caught April’s questioning look as she turned to sit, but there was no time to explain the futility of Cole’s presence in the appeals court. She had to concentrate on the opposing argument, which began with force and precision.

Gracie heard a noise beside her and turned to find April kneeling at her side with another note.

She leaned down to whisper in April’s ear. “I can’t. This is an appeal on the law. If they reverse the lower court, then we can add his testimony.”

“But he’s willing to testify!” April whispered back.

“April, I’ve got to keep track of this. Go back and sit down.”

Gracie could see one of the judges diverting his attention from the government’s arguments to the whispered conversation at the petitioner’s table, and she sat up instantly, feeling like a schoolgirl caught passing notes in class. She resumed her writing, aware of April’s frustrated sigh as she withdrew. The thought began eating its way into her consciousness, however, that maybe somehow April was right.

Is there anything I’m missing? Gracie thought, as the government lawyer turned his attention to a list of cases that allegedly proved Gracie was wrong.

Fact presentation is to be done in the trial court. But doesn’t this court have the right of original equity jurisdiction as well?

She tried to keep half her mind on the argument while the other half re-blazed its way through law school and the lessons on how the equity courts and the law courts of old England had been separate, one dealing with normal common law, the other issuing court orders and injunctions and restraining orders in equity. There was something one of her professors had taught in the third year when she’d done a directed research paper, but what was it? The lesson was hanging there, just out of reach in her mind. She thought back to that warm spring day in the professor’s comfortable office, and the memory returned. “Never forget,” he’d told her, “that even a federal court of appeals has full equity powers, even though they seldom use them beyond lifting injunctions or imposing stays of execution.”

“And therefore, Your Honor,” Riggs was saying, “not only did the trial court have the right to rule the petitioner’s factual claims insufficient on their face with or without evidence, the burden of proof was theirs, and they failed to uphold it. Finding alleged facts sufficient or insufficient is a process best left to the trial court, especially in a show-cause hearing, especially since no hearing of additional evidence can be had in an appeal such as this.”

Gracie was only marginally aware of standing. On one level, she had never felt more in control, but on another, she was merely a spectator to an unfolding interruption that could easily earn her an embarrassing rebuke from the bench.

“Your Honor, forgive the interruption, but Mr. Riggs is absolutely wrong, and we have just received pivotal new evidence that we need leave to introduce.”

Riggs turned to her with a shocked expression, the prospect of being interrupted in an appellate argument apparently never having crossed his mind.

“What are you doing?” he asked almost conspiratorially before looking back at the judges, two of whom were exchanging puzzled glances as the third, Judge McNaughton, leaned forward.

“Counselor, if you’re not aware of the protocol, you should know that we don’t allow our lawyers to interrupt each other here. You’ll get a two-minute rebuttal, provided you sit down. And I’d recommend a thorough review of our procedures before arguing here again.”

“Your Honor,” Gracie answered, moving closer to the podium and Jim Riggs’s side. “This actually is an appropriate interruption. May I tell the court why?”

“No!” Riggs thundered as he recovered from the shock. “Sit down.”

“That will do, Mr. Riggs. We’re capable of giving the same orders from up here,” Judge McNaughton said. “Miss O’Brien, if you persist in this affrontive behavior, we could consider a contempt citation to bring you under some modicum of control. I prefer hog-tying misbehaving lawyers, but case law, and our esteemed chief judge, seldom allow it.”

“Your Honor, this court has original equity jurisdiction and can hear new evidence in the form of a new witness, and here we have a doozy.”

An immediate commotion broke out at Jim Riggs’s table and the bench simultaneously as one of the judges began banging his gavel while the other two exchanged some hurried words. Judge Williamson finally quieted his two colleagues with hand gestures and took the floor.

“Miss O’Brien, we’re intrigued by your risk-taking here in insisting on educating us as to the scope of our jurisdiction, but if you haven’t noticed, there is no witness stand in this court.”

“No, Your Honor, but this court’s jurisdiction is not defined by furniture.”

There were renewed protests punctuated by Jim Riggs’s giving voice to the urgent buzz of advice from the other lawyers at the government’s table.

“Your Honor, we must protest the interference with our time for argument—”

“Wait a minute, Mr. Riggs,” Judge Williamson said. “We do have the authority to add to your allotted time, you know. You’ll get your additional minutes.” Judge Williamson turned back to Gracie, who could feel icy cold adrenaline in her bloodstream with the recognition of possible real danger.

“Now, Miss O’Brien. Please continue.”

“When our courts were created by the constitution and formed by congressional action, federal appellate courts were limited to hearing disputed matters of law only on appeals from normal legal matters. But equity jurisdiction has always been an uneasy mix, an additional duty for the courts, as it were, and there was never any prohibition in the enabling legislation nor in the rules of this court that suspended the duty of an appeals judge to consider equity pleas. In fact, any one of you may hear a matter in equity and even compel testimony, if you so choose, and the fact that it is not often done does not mean that you do not possess the authority. A breakthrough witness has just walked into the courtroom with vital evidence that wholly contradicts the government on several key points, and what he will say under oath will prove the justice and applicability of the restraining orders that were issued, then vacated by the lower court.”

“You… are alleging that we have the discretion to hear original testimonial evidence, Miss O’Brien, even though our procedures and rules do not permit it?”

“Yes, Your Honor. You may issue injunctions and restraining orders just as a federal district judge may, and your powers are not limited to that in equity.”

Jim Riggs was on his feet again, but Williamson warned him to stay quiet with a quick tilt of his head. Gracie held her breath, thoroughly alarmed at what she’d just done, and only marginally aware of more noises and commotion from the back of the courtroom.

Riggs had reached the breaking point.

“Your Honor, I move for a brief recess.”

Judge Williamson smiled an amazed smile over the top of his reading glasses.

“A recess in an appellate argument, Counselor?”

“Yes, Your Honor. The United States would appreciate a recess and opportunity to converse about this extraordinary circumstance in chambers.”

“Really? Well, I think,” Williamson continued, “that given the wholly unprecedented nature of the last few minutes, that would be a wise idea. I remind counsel for the petitioner that holding this hearing in the first place was an extraordinary concession to the justice of the matter. So, we will…”

Judge McNaughton whispered something to Williamson, who nodded.

“Oh, yes. We are going to take a short recess and meet in chambers, but first, Miss O’Brien, precisely what are you requesting?”

“That I be allowed to swear in Dr. Ben Cole of Uniwave Industries in Anchorage, Alaska, who is in the courtroom, and examine him on the issue of his presence aboard a government project aircraft on the night Captain Arlie Rosen lost his aircraft, permitting him to testify as to the high probability that Rosen’s aircraft was actually clipped by the aircraft Dr. Cole was in.”

There was a gavel banging away and a scowling Judge McNaughton was holding it as he turned to his colleagues, then back to the lawyers.

“Fifteen-minute recess to chambers.”

“All rise,” the clerk called as the judges got to their feet and filed out.

Gracie could feel her heart pounding as she glanced at Jim Riggs, expecting him to turn and charge her with angry protests.

But he had turned and gestured to someone behind her, and Gracie turned as well in time to see one of three men in business suits nod to Riggs and begin to make his way toward the government lawyers’ table.

April, too, was in motion, coming to Gracie’s side with a wide-eyed Ben Cole in tow.

“What’s happening?” April asked as Gracie ran her hand through her hair and shook her head.

“I think,” she said, shaking her head, “that I just screwed up big time. But I’m not sure.”