Skyhook (46 page)

There was one ace in the hole, he knew, and if the FAA refused to cooperate, he would have no choice but to play it as a last resort. But if that moment came, he would need to be right here in Washington.

The planned afternoon return to Anchorage evaporated before his eyes, and he made a mental note to cancel the flight reservation as soon as he returned to his hotel.

clerk’s office, united strtes district court ujhshington, d.c.

18:15 H.M.

Gracie checked her watch for the third time since she’d watched the clerk stamp and accept her filing of the new action against the FAA and disappear into the warrens of the court to answer her impertinent request that one of the judges hear the emergency petition within the next few hours.

She heard footsteps and saw the conservatively attired woman returning, closing a side door behind her as she approached the counter, smiling thinly. Her demeanor carried an air of resentment.

“This is a highly unusual and irregular request, you understand, Counselor.”

“Yes, I do. But the situation is equally unprecedented.”

“I’ve spoken with the appropriate parties, including Judge Wal ton, and I am instructed to tell you the following. First, serve the Federal Aviation Administration personally and provide return certification of that service. You may call me by phone and confirm you have it, and the judge will hear your petition then at one p.m. sharp.”

“I, ah, suppose it would be impermissible to ask whether the judge is favorably inclined to such petitions?”

The smile vanished. “Ms. Rosen, Judge Walton is seldom favorably inclined to much of anything before lunch. You’re lucky this is set for one o’clock.”

The smile returned with a small wink as the woman turned away.

3~he cab ride to the FAA’s headquarters was an irritating series of stops and starts through endless traffic signals flashing occasional

green lights at a river of gridlocked cars. Forty-five minutes of anxiety had passed with agonizing slowness by the time Gracie escaped from the taxi and dashed into the FAA building in search of the general counsel’s office. The reception was cool, quick, and seemingly unruffled, and she stuffed the signed receipt in her briefcase and rode the elevator to the ground floor to look for another cab as she dialed April on her cell phone to report their progress.

“That felt very strange,” Gracie told her. “I’ve filed lawsuits before, but I’ve never had to walk into a federal agency and essentially slap them with a subpoena.”

“What was the reaction?” April asked.

“Like it happens every hour.”

“Gracie, I just picked up another message from Dad, directing me to stop everything.”

There was a pause and Gracie cleared her throat. “Yeah, I did, too.”

“So what do we do?”

“We listen to Rachel. She called just afterwards, Sunday night, and told me she holds his general power of attorney, and she’s ordering me to continue full bore.”

“Can you do that ethically?”

“Unless my client calls and contravenes those orders, yes.”

“Thank God. I do not understand what Dad’s afraid of.”

“April, let me swing by the hotel and pick you up, then we go to the court and wait until one o’clock, when I get to argue my heart out for the injunction and ask for a show-cause hearing for tomorrow, if at all possible.”

“We can make them move that fast?”

“It always depends on the discretion of the judges, but I’ve made a strong argument for imminent harm. We should get what we’re after. With any luck, we’ll get the show-cause hearing and some government attorney will have to come tell the court who has the wreckage and what’s being done with it. In the meantime, April, I’m praying I can put enough pressure on the FAA to get them to drop the whole thing and reinstate the captain’s license.”

“Could it really be that easy?”

Gracie paused a few seconds too long, and knew April would interpret it badly. “Could be, but… I doubt it. Frankly, I’m going to have to play this by ear, April. We’re in uncharted waters, and I’m a minnow challenging sharks.”

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…