lawyer-pilots bar association journal · 2 lpba journal summer 2007 the lawyer-pilots bar...

VOL. XXVIII NO. 2 CLEVELAND, OHIO SUMMER 2007

“dedicated to aviation safety, the just administrationof the law and continuing legal education.”

LAWYER-PILOTS BAR ASSOCIATION JOURNAL

“Lisa Marie,” the Convair 880 jetliner operated by Elvis Presley, awaits the return of The King.

Photo by Ed Booth, Jr.

SUMMER MEETING – CHATEAUX AT SILVER LAKE RESORT – PARK CITY, UTAH – AUGUST 1-5, 2007

WINTER MEETING – DON SHULA HOTEL AND GOLF CLUB – MIAMI, FL – FEBRUARY 13-17, 2008

WWW.LPBA.ORG

2 LPBA JOURNAL SUMMER 2007

The Lawyer-Pilots Bar Association Journal (ISSN 0274-9319) is published quarterly and distributed free to the member-ship as part of dues by the Lawyer-Pilots Bar Association, 925 Euclid Ave., Suite 1150, Cleveland, OH 44115-1475. Fornon-members, individual copies are available at $30.00. Foreign subscriptions are $1.00 additional per copy to covermailing costs and handling. Periodicals postage paid at Cleveland, OH. POSTMASTER: Send address changes toLawyer-Pilots Bar Association, P.O. Box 1510, Edgewater, MD 21037. Ride along mail enclosed.

EDITORGary W. Allen . . . . . . . . . . . . . Williamsburg, VAE-mail: [email protected]

ASSOCIATE EDITOREllen L. Riddle . . . . . . . . . . North Royalton, OH(440) 230-9252E-mail: [email protected]

CONTRIBUTING EDITORSAlan E. Armstrong . . . . . . . . . . . . . Atlanta, GACecile S. Hatfield . . . . . . . . . . . . . . . Miami, FLR. Christopher Julius . . . . . . Washington, D.C.Steven A. Kirsch . . . . . . . . . . Washington, D.C.Jacob I. Rosenbaum . . . . . . . . . Cleveland, OHKenneth D. Stein . . . . . . . . . . . . New York, NYJohn S. Yodice . . . . . . . . . . . Washington, D.C.

ADMINISTRATIVE OFFICEKaren Griggs

Lawyer-Pilots Bar AssociationP.O. Box 1510

Edgewater, MD 21037

OFFICERSPRESIDENTTimothy S. FretsDouthit, Frets & Rouse903 East 104th St., Suite 610Kansas City, MO 64131Phone: 816/941-7600Fax: 816/941-6666E-mail: [email protected] M. Booth, Jr.Zisser, Robison, Brown, Nowlis & Maciejewski, P.A.One Independent DriveJacksonville, FL 32202Phone: 904/353-3222Fax: 904/353-8808E-mail: [email protected] E. LumanLuman, Helfman, Fayer & Tucker140 Grand StreetWhite Plains, NY 10601Phone: 914-683-1800Fax: 914-683-1897Res: [email protected] L. HoferDean and Gibson, LLP301 S. McDowell St., Suite 900Charlotte, NC 28204Phone: 704/372-2700Fax: 704/372-1804E-mail: [email protected]

EXECUTIVE DIRECTOR

Karen Griggs. . . . . . . . . . . . . . . (410) 571-1750

Fax . . . . . . . . . . . . . . . . . . . . . . (410) 571-1780E-mail. . . . . . . . . . . . . . . . . [email protected]

REGIONAL VICE PRESIDENTS

ALASKANErin B. Marston - Anchorage, AK

CENTRALScott J. Gunderson - Wichita, KS

EASTERNArlene Feldman - Mt. Laurel, NJ

GREAT LAKESR. Steven Polachek - Barrington, IL

NEW ENGLANDJohn B. Oestreicher - N. Branford, CT

NORTHWEST MOUNTAINGlen D. Mark - Beaverton, OR

SOUTHERNRobert Feldman - Miami, FL

SOUTHWESTWinstol D. Carter, Jr. - Houston, TX

WESTERN PACIFICCharles M. Finkel - Los Angeles, CA

EASTERN CANADAPatrick H. Floyd - Ottawa, Ontario

WESTERN CANADAVern Schwab - Edmonton, AB

INTERNATIONALTimothy R. Scorer - London, EnglandSpencer R. Ferrier - Sydney, Australia

Rolf W. Quist - Stuttgart, Germany

BOARD OF DIRECTORS

Arthur W. Hankin (2007) . . . . . Philadelphia, PA

Ronald L. Hofer (2007) . . . . . . . . Cornelius, NC

Keith D. McGee (2008) . . . . . . . Vancouver, BC

Gary L. Evans (2008) . . . . . The Woodlands, TX

Charles M. Finkel (2009) . . . . . . . Redding, CA

Catherine Moore (2009) . . . . . . Springfield, MO

PAST PRESIDENTSAlbert Rathblott, Deceased . . . . . . 1959-1964George M. Bryant, Deceased . . . . 1964-1966Virginia Hash, Deceased . . . . . . . . 1966-1970Donald R. Krag . . . . . . . . . . . . . . . 1970-1974Maurice E. Gosnell, Deceased. . . . 1974-1978Lloyd B. Ericsson, Deceased. . . . . 1978-1980Jacob I. Rosenbaum . . . . . . . . . . . 1980-1982Glover McGhee . . . . . . . . . . . . . . . 1982-1984John S. Yodice . . . . . . . . . . . . . . . . 1984-1986David M. Baker . . . . . . . . . . . . . . . 1986-1988George I. Whitehead, Jr., Deceased . 1988-1990Michael R. Gallagher . . . . . . . . . . . 1990-1992Jay Fred Cohen . . . . . . . . . . . . . . . 1992-1993Sidney L. Berlin, Deceased. . . . . . . 1993-1994H. Clark Bell . . . . . . . . . . . . . . . . . . 1994-1995John J. McNamara, Jr. . . . . . . . . . 1995-1996Joseph A. Gawrys.. . . . . . . . . . . . . 1996-1997J. Timothy Cook. . . . . . . . . . . . . . . 1997-1998Cecile S. Hatfield . . . . . . . . . . . . . . 1998-1999James F. Pokorny . . . . . . . . . . . . . . 1999-2000Errol K. Kantor . . . . . . . . . . . . . . . . 2000-2001William H. Wimsatt . . . . . . . . . . . . . 2001-2002Edward A. McConwell . . . . . . . . . . 2002-2003Timothy E. Miller . . . . . . . . . . . . . . . 2003-2004Kathleen A. Yodice . . . . . . . . . . . . . 2004-2005Martin T. Weiss . . . . . . . . . . . . . . . . 2005-2006

THE LAWYER-PILOTS BAR ASSOCIATION JOURNALPublished Quarterly by the Lawyer-Pilots Bar Association

Organized October 21, 1959Publication Office Editorial Office

c/o Tucker Ellis & West LLP Gary W. Allen, Esq.925 EUCLID AVENUE, SUITE 1150 2100 Horne’s Lake Rd.

CLEVELAND, OHIO 44115 Williamsburg, VA 23185Telephone: (216) 592-5000 Telephone: (757) 345-6926 Cell: (703) 401-4580

Fax: (216) 592-5009 E-mail: [email protected]

On the CoverThirty years after his death on

August 16, 1977, the Convair 880jetliner operated by Elvis Presleyis on display across the streetfrom his Graceland mansion inMemphis, Tennessee. N880EPwas delivered to Delta Airlines in1961, and retired in the early1970’s. Elvis converted the bigConvair into a “Flying Graceland,”and named it after his only child“Lisa Marie.” The tail displays thegold “TCB” motto, short for“Taking Care of Business, in aFlash.” The 615 mph Convairallowed Elvis to do just that.

See page 22 for a photo of theplane’s tail.

SUMMER 2007 LPBA JOURNAL 3

In 1987 I attended my first LPBAmeeting. The first person I met wasKaren Griggs, our Executive Director.Now, twenty years later, as I write thislast President’s Message, Karen isalso the first person I must thank. Hertireless efforts, her loyalty, and thesimple fact that she’s very good atwhat she does, keep this organizationrunning smoothly. Her friendship willalways be treasured.

It was the fact that the summer1987 meeting was held in Wisconsinin connection with the EAA Air showat Oshkosh that provided the extraincentive for me to attend my firstmeeting. Our President-Elect, EdBooth, has arranged for the summer2008 meeting to again be held in con-nection with the Oshkosh AirVenture,so I hope that those of you whohaven’t yet attended a convention willuse that as the incentive to see whatyou’ve been missing. My wife, Vicky,remembers that first Oshkosh experi-ence more for my reaction upondiscovering, after having taken 30-40priceless photographs of classic air-planes and warbirds, that the cameradidn’t have any film in it. The resultingdiscussion was similar to that ofwhether one should top the tanksimmediately after flying or wait untilready to fly again. Fortunately, wenow have a digital camera for the2008 meeting.

Twenty years of meetings havegone by fast and provided manymemories. That first Oshkosh meet-ing was followed a couple of yearslater by a very memorable meeting atthe Grand Hotel on Mackinac Island.We recall bicycling around the islandwith our then-5-year-old daughterand 3-year-old son on the back of thebicycles (which was not much fungoing uphill). That meeting does notseem that long ago. But in the past 48hours, we’ve seen that daughtergraduate from college with a degreein architecture and seen that sonpitch in a college regional baseballtournament. Flying back at 2 a.m. lastnight from the ball game we had amid-air with what may have been a

goose (judging from the black andgrey feathers plastered to the base ofthe windshield) while descendingthrough 5200 feet. The goose faredabout as well as I did in the discus-sion of whose responsibility it is toload film in the camera. In any event,both kids still talk about that meeting,especially landing on Mackinac Islandand taking a horse-drawn wagon tothe hotel. Well, mostly they remembersitting in the front row of the horse-drawn wagon behind a horse withintestinal gas problems.

Past meetings memories includethe pre-meeting side trip toYellowstone with the Alperts and thenthe “flight of two” over the Tetonsfrom Jackson Hole to Sun Valley.There was a dance contest at thePalm Springs banquet between mydaughter and Tamara Pokorny —both claim to have won. In theBahamas, a number of us discoveredthat one brand of Bahamian beer atthe beach bar had a little more octanethan we anticipated. In Cancun, wewitnessed Judge Mullins perform amock wedding ceremony on thedance floor of a local bar and pro-nounce two of our attendees“coupled for the evening.” I alsolearned at the top of the pyramid atChichen Itza that pilots can be scaredof heights. In our LPBA Golf tourna-ment in Puerto Rico, we played withnearby iguanas the size of alligators.In Tucson, I learned the hazard ofreaching for a golf ball locatedbetween several cacti. At the NewOrleans Mardi Gras meeting, thevalue of beads became apparent. Mykids remember touring the aircraftcarrier and going to the hauntedhouse at Virginia Beach. In fact, mydaughter remembers going to thehospitality suite at various meetings.She says “it was a party that was usu-ally fun even for the kids.”

The point is that LPBA meetingsare fun. For those of you who didn’tmake the San Diego meeting inFebruary, you missed a good meet-ing. I learned from one of ourmembers, who shall remain name-

less, but Lloyd you know who youare, that it is possible to hit a golf ballthrough an open door into the spabuilding. If you didn’t make SanDiego, we hope to see you at ParkCity, Miami or next summer’sOshkosh meeting. The CLE is good.The memories and friendships arepriceless.

This last year has gone by just asfast as the last twenty years. I wouldlike to thank our incoming president,Ed Booth, for arranging a fantasticCLE program, and Karen Griggs andJohn Yodice for their usual great workin handling the convention details. Weall owe a debt of gratitude to GaryAllen and Ellen Riddle for making theLawyer Pilots Bar Association Journalthe flagship of our organization; to EdBooth, who continues to keep us up-to-date with the outstanding LPBAwebsite; and to the members of theBoard of Directors and the ExecutiveCommittee, who keep this organiza-tion headed in the right direction.Finally, I would like to thank my wife,Vicky, and Kara, Kyle and Trevor fortheir enthusiastic support of theLPBA. It has been my honor and priv-ilege to serve as president this year.

— Tim Frets

PRESIDENT’S MESSAGE

ADDRESSCHANGE?

If you have a changeof address,

please forward it to:

Karen GriggsLPBA Administrative Office

P.O. Box 1510Edgewater, MD 21037.


Greetings from the sweet-tea endof Flagship LPBA as once again weprepare to embark upon our flighttogether. First Officer Riddle, everattentive to keeping Your Captainoccupied and distracted so she canaccomplish the real work up here freeof my well-meaning interference, hasproduced a dewy tumbler of theaforementioned summer treat for meand I revel in each sip as I gaze outthe cockpit side-windows at the fullbloom of Summertime in the good ol’USA. You can sense the collectivenational relaxation as friends andfamily everywhere escape the rou-tines of home and office and head outfor Vacation Adventures. Perhapssome of you are so engaged as youstep aboard.

Aviating is always a special treat, ofcourse, but in the summer even thoseof us flying humble sky-steeds canenjoy free air conditioning courtesy ofMother Nature and her adiabaticlapse rate, the summer airperson’sfriend. Rising above the skim-milklayer into the clear air above the hazeis usually just a few gallons of avgasaway, and I for one am hard-pressedto think of a more agreeable way tospend recreational resources thistime of year. I believe I just heard achorus of “amens” from the tie-downrow at your airport; your favoritewinged friend is rested and ready.

While it’s always a treat to gazedown upon the lush landscapes ofsummer, it’s also true that after amonth or so, those of us coopered inthe warmer sections of the countrylong for some seasonal relief. And ofcourse, our summer gathering in ParkCity will be just what the meteorolo-gist ordered: low humidity, highaltitude, useful CLE, and of coursethe fine food, fellowship and fun thatalways characterizes the gatheringsof this line. Why not stretch yourwings and come join us? We’ll bethere, albeit with our 12-ton, ground-pounding A/Bus, trailing diesel fumesfrom Tidewater via Oshkosh to theGreat American West. I can’t wait.We’ll see you there, right?

History HappensSince retiring and relocating our

family base-ops from the bustling DCmetroplex to Virginia’s MiddlePeninsula, Marie and I have foundourselves happily enveloped by his-tory. After all, when the Queen andthe President came to celebrate the400th anniversary of the founding ofJamestown in May, they were but a20-minute bicycle ride from Grey-stone, and when we amble down toour Two Rivers Country Club, locatedat the confluence of the James andChickahominy Rivers here in TheGovernor’s Land, we’re at the site ofa Powhatan Indian village doubtlessvisited by John Smith and Pocahon-tas. Then there’s Colonial Williams-burg, which we locals can visit at willfor the princely sum of ten dollars peryear, and Yorktown, reachable by agorgeous ride on BluZu up theColonial Parkway. And there’s therich Civil War history, often over-looked in our regional emphasis onThings Colonial.

Doubtless your area has its ownrich history as well. Of course ournotions of history are laughingly shal-low by European standards, wherebuildings and sites from our colonialperiod seem so recent you canalmost smell the paint drying. What,then, of the history of American avia-tion? Through the long lens of time, itis very recent indeed.

That makes it no less consequen-tial, of course, especially for those ofus who like to think of the sky as oursecond home. And we can be reas-sured that on a national level,institutions such as the magnificentSmithsonian Air & Space Museumand Udvar-Hazy Center have meticu-lously documented and preserved ournational aviation roots.

But there’s more to it than that, ofcourse, for if (as Tip O’Neill famouslyobserved) all politics is local, howmuch more so aviation history? Is theairfield where you learned to fly stillactive? Where was the first airline ser-vice in your state? Any WWII training

fields nearby? What about local air-craft designers and manufacturersand other pioneers lost in the mists oftime? Who’s preserving their inspira-tion and accomplishments forposterity?

In Virginia, one answer is theVirginia Aeronautical Historical Soci-ety. When we arrived in The Burg itcame to my attention — courtesy ofLPBA’s very own Al Orgain, currentlyserving as its Chairman of the Board— that there was a local chapter ofVAHS meeting monthly at JGG for thepurpose of making and maintainingfriendships, drinking coffee, swap-ping lies, and celebrating the eventsunique to our state and its airpersons.I hied myself over there and wastreated to the reminiscences of aretired aeronautical engineer and testpilot heavily involved in the develop-ment and deployment of severalsignificant military fighters.

VAHS was formed in 1977 by agroup of aviation-minded citizens ofthe Commonwealth who cametogether to “study, research, interpret,preserve and disseminate Virginia’saviation and aeronautical heritage,and to preserve, acquire and displaythose items pertaining to Virginia’saviation and aeronautical heritage.”One of its first acquisitions was thecollection of historical aircraft main-tained in a private collection atShannon Field in Fredericksburg.That became the heart of the VirginiaAviation Museum located at RICwhich the Association supports. It iswell worthy of your visit next timeyou’re passing through or over theOld Dominion, and it also serves asthe Association’s headquarters.

I attended the Association’s annualfundraiser at the Museum, which fea-tured heavy hors d’oeuvres and anopen bar located amongst the historicaircraft. What’s not to like??Chairman Al even turned over thecontrols of an R/C indoor blimp tome, which I managed to crash intovarious overhead HVAC componentsand the odd Museum patron before itwas turned over to someone more

FROM THE COCKPIT


capable (a broad category indeed).Featured were both a silent and regu-lar auction conducted by Our ManOrgain, the latter proving quite amus-ing for everyone but him when hiswife out-bid everyone for some verynice and very expensive warbirdflights. When those checkbookentries become logbook entries he’llfeel (even) better about it. I managedto win the silent auction for an aircraftfuel gauge with a $5 bid, and lackingan aircraft, perhaps I’ll install it on our1966 Wheel Horse tractor. If you needit, why, make me an offer.Notwithstanding my miserly contribu-tion and my induced drag on thebuffet and bar, the evening appearedto be a big success.

The Association has sponsoredmany state historical markers whichcommemorate key locations andevents in Virginia aviation history. Itreaches out to kids with local presen-tations at schools, Scout troops andsimilar venues. Another ongoingVAHS project is the collection of writ-ten and oral histories ofVirginia-based pilots, engineers, sup-port personnel, and officials, a projectthat warms the heart of myarchivist/historian bride. Recognizingthat the Greatest Generation is flyinginto the sunset, the Association ismaking a determined effort to seethat their accomplishments andmemories are duly recorded, pre-served and honored.

As well they should be. While avia-tion will always be an exciting andattractive endeavor, it once was alsogenuinely dangerous and demanding.That is well worth remembering, andthe remembrance honors those fellowcitizens in whose propwash we fly.Check out your locale and you’llprobably find an organization like theVAHS which deserves your member-ship and support.

As for me, I’m waiting for anothershot at that R/C blimp at the nextfundraiser. If one were auctioned,there’d be a bidding frenzy to keep itout of my hands.

Loved Ones Aloft . . .The call from my daughter Caroline

was typically cheerful. “Hey Dad,guess what? I’m going flying!” AtDartmouth/Tuck where she was fin-ishing her MBA, her usual routines ofheavy studying intermingled with

adventuresome leisure pursuits —soccer, advanced hiking, adventuretravel — made this relatively unex-ceptional news. Yet, I found myreaction to it surprising.

I’ve never been the stereotypicalover-protective father with our twosons or our daughter. This may bedue in part to parents who gave me alot of rope as I grew up, gravitating toyouthful activities like riding scooters,Whizzer motorized bicycles, andeventually motorcycles, utterly devoidof any protective gear, and drivingcars hard and fast. In fact, my folksarranged for my first flying lesson onmy fourteenth birthday though neitherof them had any background or inter-est in it. They had some appreciationfor the risks involved in my variousendeavors, but recognized that theyplayed the same role for me that ath-letics did for many of my peers. And Iwas careful, relatively speaking,adopting the use of seatbelts andprotective riderwear once I under-stood their benefits and avoidingmost of the stupid things a teenagercan do with a little airplane.

Thus when I achieved the honor-able status of Dad, I took my kidsflying with me and, when I resumedmotorcycling after a self-imposedSafety Hiatus during child-rearingyears, for motorcycle rides. Had anyof them chosen to undertake theseactivities for themselves, I might’vesquirmed a bit, but would have acqui-esced. I didn’t face those preciseissues, though, because they foundtheir own risk-laden pursuits: Brady(now an ER doctor, appropriatelyenough) was an avid rollerblader wholiked nothing better than 30-40mphdownhill runs, and Caroline’s first lovewas horses. I had to put the horsesequence in “Gone with the Wind”out of my mind as she owned androde a hunter-jumper from adoles-cence through college. (Andrew, ourBonus Baby, thankfully finds fulfill-ment in the creative arts, where theprimary risk is starvation.) Throughgood fortune and the good Lord’sprotection, they, like their fatherbefore them, emerged into adulthoodunscathed from their favored pur-suits.

So why did I find myself so unex-pectedly anxious at Caroline’soffhand revelation? Out came a tor-rent of questions: who’s the pilot?

Membership Dues Invoice . . . . . . 8

Summer Meeting Information . . . 9The Chateaux at Silver LakePark City, UtahAugust 1 – 5, 2007

Summer Meeting IndividualReservation Form . . . . . . . . . . . . 10

Summer Meeting LPBAReservation Form . . . . . . . . . . . . 12

Summer Meeting Program . . . . . 13

Recent Developments InAviation Law . . . . . . . . . . . . . . . . 14

by Cecile Hatfield

Searching for Amelia. . . . . . . . . . 21by Ed Booth, Jr.

Government Litigation . . . . . . . . 23Equines and Turbines

by Steven A. Kirsch

Flight-Watch. . . . . . . . . . . . . . . . . 26by Alan Armstrong

The Enforcement Docket . . . . . . 29by Gary Halbert

Ethics: Circumnavigating theBuildups . . . . . . . . . . . . . . . . . . . . 31

by Gary W. Allen

When an Employee’s Off-dutyConduct Impacts theWorkplace . . . . . . . . . . . . . . . . . . 33

by Kenneth D. Stein,Elana Gilaad,and Yoon Kim

LPBA Welcomes New Members . . . . . . . . . . . . . . . 39

In ThisIssue

frenetic schedule of year’s-end andgraduation approached, I figured theflight had been overtaken by events.

Then one day my BerryFonebuzzed. “Hey Dad, what kind ofMooneys were those we used to go


What’s his background? Has he flownthe New England topography before?What’s his attitude towards weather?I recognized that my behavior wasatypical and, in my daughter’s case,utterly unnecessary; she is a smart,principled, independent, worldly-wiseChristian woman (beautiful, too) whois more than capable of looking outfor herself, as well as for a number offriends who rely on her for LifeAdvice. Like her mother, in otherwords.

Her reaction to my sudden tsunamiof questions was indulgent

unhappy endings colors my assess-ment of these things, even as itmakes my ER-doc son fanaticalabout trussing our grandchildren intotheir carseats until their seatbelts aretight as banjo strings. After thinkingabout it for awhile, I decided that myproblems were rooted in the fact thatneither I nor she could control therisk elements to which she was goingto be exposed.

The proposed flight was scrubbedby weather, and I heard nothing moreabout it for a number of weeks. As the

flying in?” she asked. Well, a coupleM20F Executives and an M20J 201, Isaid, why do you ask? “Well, I’m outhere on the ramp next to BarackObama’s campaign jet and Bryan ispreflighting our Cessna. He wanted toknow.” Ahhhh, the Flight was about tooccur. I told her to enjoy it and deter-minedly began thinking aboutsomething else.

A day or so later came the link tothe pictures and video clips she hadweb-posted from their flight. Theyshowed the beautiful, sun-splashedNew England topography, the criss-cross patterns of the Tuck andDartmouth campus, and the spine ofthe mountain ridges along which shehad hiked. Her self-portrait shot atarm’s length in the right seat showedthe same glow of enjoyment andexcitement I’ve felt so often as Ienjoyed the beauties of God’s greenearth from the angels’ perspective.

I was so glad that she’d gone. A lifespent hiding from life’s risks would bea poor one indeed, and she didn’tneed me to manage them for her; shecould do that, like everything else, forherself.

My part was to sit back, relax, andbe glad that I’d been a part of havinga loved one aloft.

Our Route of FlightI think you’ll find today’s flight

takes in some pretty interesting terri-tory. NTSB General Counsel (andmember) Gary Halbert gives a usefuloverview of the functions of the Boardand his office, and promises futurecontributions concerning matters ofinterest to us all. Cecile Hatfieldkeeps us all updated on the latestcaselaw developments, and KenStein aims to keep us on the taxiwayeven when we’re not flying throughhis look at off-duty conduct. IncomingPresident Ed Booth shares a memo-rable Fourth of July at AmeliaEarhart’s house, and Steve Kirschmounts up for a horseback look atlow-flying government aircraft.There’s the Summer Meeting particu-lars to whet your appetite, and a lookat the flight plan from disbarment orsuspension back to the flight line.

As always, it’s an honor to serve asYour Captain on these flights. So now,sit back, relax and . . . lemme see if Ican get this baby into the air.

— Gary W. Allen

Captain Bryan and First Officer Caroline

TuckLove from above

bemusement. The pilot, shepatiently explained, was afellow Tuckee (a selectgroup indeed), entrusted bythe Navy with nuclear sub-marines and a pilot since histeens. He evidenced duecare for the weather andshe was certainly capable ofassessing that factor forherself before climbingaboard. He had capablycaptained a rented 40-footsailing yacht that ten ofthem had chartered for aSpring break voyage aroundthe Virgin Islands. In otherwords, chill out, Dad.

I retreated into my Anxiety Closetand left unsaid the little speech I wasinclined to give about the irreduciblerisks of general aviation. Admittedly,a 35-year career spent wallowing inthe sad details of flights that came to


Longtime LPBA member Eilon Krugman-Kadi died on March 16th while flying his L-39Albatross military jet at the TICO Warbird airexhibition in Titusville, Florida. Born in Israel in1948, Eilon began flying gliders there at the ageof 15 and learned to fly in the Israeli military. Hecame to the US to attend Embry-RiddleAeronautical University, from which he graduat-ed summa cum laude, and then the Universityof Florida School of Law, from which heobtained his JD, and began a long and suc-cessful legal career as head of his own firm inGainesville. He obtained numerous airman’scertificates including an ATP and CFI and flewmany types of aircraft, culminating in the L-39in which he took such pride and pleasure.Eilon, a man of broad interests and possessedof a great enthusiasm for life, was a long-timemember of LPBA and brought his L-39 to theAmelia Island Winter Meeting in 2006. A mes-sage of condolence from LPBA was deliveredat his memorial service, held March 19 in ahangar at the Gainesville Airport; burial was inJerusalem. He survived by Shane Krugman-Kadi, his son, Talia Krugman-Kadi, hisdaughter, their mother, Susan Krugman-Kadi;Hana McMullen-Kadi, his daughter, and hislong-time companion, Lynda McMullen, all ofGainesville, Florida.

Eilon Krugman-Kadi

Memorial contributions may be made to:The Eilon Krugman-Kadi

Memorial Education FundLubavitch-Chabad Jewish Center

Jewish Student & Community Center at the University of Florida2021 NW 5th AvenueGainesville, FL 32603

IN MEMORIAM


INVOICE

LPBAP. O. Box 1510, Edgewater, MD 21037 June 1, 2007 Tel.: 410-571-1750 - Fax: 410-571-1780 Email: [email protected]

2007/2008 LPBA MEMBERSHIP DUES INVOICE

DUE DATE: JUNE 30, 2007

Annual Dues: Full: $99.00

July 1, 2007 – June 30, 2008 Student: $49.00

Please return this invoice with your check, payable to “LPBA”, or authorize a charge to your Visa, Mastercard, or American Express:

______________________________________________ ________________ Card Number Exp. Date

Name as it Appears on Card: _________________________________________

For the Membership Directory, please update any changes or additions:

Name: __________________________________________________________________

Firm: ___________________________________________________________________

Address: ________________________________________________________________

________________________________________________________________________

Office Phone: ____________________________ Fax: __________________________

Email: __________________________________ Home Phone: __________________

Name of Spouse: _________________________________________________________

Areas of Practice: _________________________________________________________

________________________________________________________________________

--------------------

Print member’s name: ___________________________________ Date: ____________


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and hot tub, business center and Marc Raymond’s Tranquility Spa/Salon. Additional amenities include wireless

Internet access in all meeting rooms and guest rooms, nightly turndown service, plush terry robes, pillow top

mattresses and feather beds, specialty shops and recreational equipment rental/sales at Stein Eriksen Sport. The

Chateaux consists of two buildings, which are connected by a central courtyard with a heated walkway.

Serving breakfast, lunch and dinner in winter months and dinner only in summer months, Bistro Toujours, an elegant

gourmet restaurant located in The Chateaux, has been named “Top 50 Best New Restaurants in the World” by Conde

Nast Traveler and “Award Winner of Excellence” by Wine Spectator. Also located in The Chateaux, Club Buvez!

provides a relaxing environment for enjoying libations.


INDIVIDUAL RESERVATION FORMTHE CHATEAUX AT SILVER LAKE

The Chateaux at Silver Lake, which opened in January of 2000, offers outstanding luxury accommodationswithin steps of Deer Valley Resort’s Silver Lake Village and is three miles from Park City’s Historic MainStreet. Embellished with Old World French décor, The Chateaux features a variety of lodging optionsincluding 95 hotel rooms, 35 studio rooms and 5 one-bedroom suites. Spacious two and three bedroomsuites are also available. The Impressionist Ballroom offers 6,627 square feet with state-of-the-artaudio/visual services and can accommodate groups up to 440 people classroom style or can be divided intothree independent sections. Two smaller meeting rooms and a distinguished boardroom are also availablefor more intimate gatherings.

The Chateaux’s amenities include a 24-hour front desk, bell/valet and concierge services, complimentaryheated underground parking, complimentary in-town shuttle, complimentary fitness center, four-seasonoutdoor heated pool and hot tub, business center and Marc Raymond’s Tranquility Spa/Salon. Additionalamenities include wireless Internet access in all meeting rooms and guest rooms, nightly turndown service,plush terry robes, pillow top mattresses and feather beds, specialty shops and recreational equipmentrental/sales at Stein Eriksen Sport. The Chateaux consists of two buildings, which are connected by acentral courtyard with a heated walkway.

The Chateaux at Silver Lake is pleased to offer guests attending the Lawyer-Pilots Bar Association on8/1/2007 to8/5/2007 , the following lodging options.

Hotel Rooms – Each room features one or two queen beds, private bath, high-speed wireless Internet, cabletelevision, small refrigerator, toaster, coffee maker and fireplace. Approximately 400 square feet.

Nightly Rate: $149

The following units are not part of the group block but can be reserved on a space available basis:Studio Units – Each room features a queen Murphy bed, fully equipped kitchen, private bath, high-speedwireless Internet, cable television, living room and fireplace. Approximately 500 square feet.

Nightly Rate: $149

One-Bedroom Suites – Each suite offers the combined features of a hotel room and a studio unit. A queenMurphy bed is available in most living areas. Approximately 900 square feet. Nightly Rate: $194Two-Bedroom Suites – Feature two bedrooms with fireplace, three baths, fully equipped kitchen, livingarea with fireplace, cable television in each bedroom and living area and washer/dryer. Approximately1,300 square feet. Nightly Rate:$299Three-Bedroom Suites – Features the same design configurations as the two-bedrooms, with an additionalbedroom and bath. Approximately 1,700 square feet. Nightly Rate: $399

The above rates do not include Utah State Lodging Tax (currently 10.35%), Resort Lodging Fee of2.85% and Daily Service Charge of $5 per bedroom. Please complete and sign the second page of this Reservation Form. Once we have received your signedReservation Form, either by fax or mail, a confirmation will be forwarded to you. Forms may be sent to:Deer Valley LodgingAttn: Group Sales DepartmentP.O. Box 3000Park City, Utah 84060Fax Number: (435) 655-4941


Lawyer-Pilots Bar Association8/1/2007 to 8/5/2007

Arrival Date: _________________ Departure Date: __________________ Room Type: _____________

Guest Name: __________________________________________________________________________

Address: ______________________________________________________________________________

Phone: _______________________ Fax: ______________________ Adults: _______ Children: _______

Additional Guest Names: _________________________________________________________________

Credit Card Number: _______________________________ Expiration Date: _______________________

Authorized Signature: _________________________ Name on Credit Card: _______________________

** Signature acknowledges agreement to policies as outlined below.

Deposit/Cancellation Policies:

· An initial deposit of one night’s room and tax is due at the time of reservation by the individualguest.

· Each reservation is subject to the Utah State Lodging Tax of 10.35%, Resort Lodging Fee of2.85%, and Daily Service Charge of $5 per bedroom.

· Final payment is due upon arrival.· Individual cancellations made more that 7 days prior to arrival will forfeit a $50 processing fee.· Cancellations made within 7 days of arrival will forfeit total lodging cost.· NO SHOWS, EARLY DEPARTURES, LATE ARRIVALS, OR DOWNGRADES ARE

SUBJECT TO FULL PAYMENT OF CONFIRMED RESERVATION UPON DEPARTURE.

In order to avoid cancellation charges, we highly recommend the purchase of Trip Insurance.

Yes, please send me information on Trip Insurance _____________No, I am not interested in Trip Insurance _____________

GROUND TRANSPORTATION – The Salt Lake City International Airport is located 40 minutes fromDeer Valley. Park City Transportation offers a variety of services including Private Cadillac Escalade,Private Van, or Shared Van service. Payment for this service will be added to your final bill. Gratuity isnot included. Cancellations made within 24 hours of arrival will forfeit full prepayment of transfer cost.

______ Yes, transportation will be needed. Airline information is provided below.______ No, transportation is not needed.

Arrival Date: ___________ Airline & Flight #: _______________ Arrives Salt Lake City: ___________

Departure Date: ___________ Flight Time: ______________ Number of Passengers: ______________

AIRLINE ARRANGEMENTS – Deer Valley Lodging’s in-house travel department is pleased to offerspecial package fares with DELTA AIRLINES that do not require a Saturday stay. If you are in need ofadditional information, please contact Premier Travel at (800) 677-2047.

A confirmation will be forwarded to you. Please contact our reservations staff with any questions at (800)782-4813, or visit our website at www.deervalleylodging.com . We look forward to your visit!


LAWYER-PILOTS BAR ASSOCIATION THE CHATEAUX AT SILVER LAKE, PARK CITY, UTAH - AUGUST 1-5, 2007

LPBA REGISTRATION FORM ______________________________________________________________________________

Return Registration to: Lawyer-Pilots Bar Association P. O. Box 1510 Edgewater, MD 21037

(410) 571-1750 Fax: (410) 571-1780 Email: [email protected]

Name:

Address:

Tel: __________________________ Fax: __________________________ Email: _________________________________

Arrival: August:________, via _____________________________, at ___________am/pm Departing: August: ________

Accompanying me will be my spouse/guest: _________________________________________________________________

and children (names and ages): ____________________________________________________________________

Please check here if you are a first-time attendee: ________________

Registration may be paid by check, payable to "LPBA", or by Master Card/Visa/American Express.

Card Number: __________________________________________ Exp. Date: ___________

Name as it appears on card: _____________________________________________________

Member Registration……………………………$385.00 Accompanying Spouse/Adult Guest…………….$225.00 Child, age 10-17 ………………………………… $55.00 Child, age 3-9 …………………….…………….. $20.00

Hotel Information and ReservationRooms are reserved at The Chateaux at Silver Lake for $149.00 per night, plus Utah Tax of 10.35%, Resort Lodging Fee of 2.85%, and Daily Service Charge of $5 per bedroom. Room reservations may be made by using the hotel’s reservation form. All reservations need to be guaranteed with a one-night deposit. Cancellations made more than 7 days prior to arrival will forfeit a $50 processing fee, and cancellations made within 7 days of arrival will forfeit the total lodging cost. No shows, earlydepartures, late arrivals, or downgrades, are subject to full payment of confirmed reservation upon departure.

Airport InformationCommercially, Salt Lake City Airport is about 50 minutes from the hotel. Rental cars are available, or transportation can be arranged with Park City Transportation (either shared or private service) by calling 800-637-3803 or 435-649-8567.

For general aviation, Heber City Airport (36U) is about 20 minutes from the hotel, and has a 6900 foot runway. The FBO is OK3 Air (435-654-3962). Tie downs are available for $20 a night, or over 5 days a maximum of $75. Currently, Avgas is $5.55 and self serve is $5.15. Enterprise rental cars are available with advance reservations through the FBO, or transportationto the hotel can be arranged with Part City Transportation by calling 800-637-3803 or 435-649-8567.

ADDITIONAL INFORMATION AVAILABLE ON LPBA'S WEBSITE: www.lpba.org

I/We are interested in participating in the following events:

_____ Golf Outing 8/2 _____ Trap Shooting Event 8/3 ____ Fun/Run, Walk/Talk 8/4

_____ Spot Landing Event 8/4

HOTEL RESERVATION DEADLINE

JULY 11, 2007


LAWYER-PILOTS BAR ASSOCIATION THE CHATEAUX AT SILVER LAKE, PARK CITY, UTAH

P R O G R A MAUGUST 1 – 5, 2007

Wednesday, August 1

3:00pm Board of Directors Meeting 6:30-8:00pm Welcome Cocktail Reception

Thursday, August 2

8:00-Noon Registration 8:00-9:00am Breakfast 9:00-9:10am “Welcome and Opening Remarks by the President”

Timothy S. Frets; President, LPBA and Attorney at Law, Douthit, Frets & Rouse, Kansas City, MO 9:10-10:00am “Mediation Issues in Aviation Cases”

David Hunter; Lane Powell, P.C., Seattle, WA 10:00-11:00am “Don’t Worry, We’ll Troubleshoot it in the Air” – 10 Tips on How You Can Prevent

Committing Legal MalpracticeDonald M. Maciejewski; Zisser, Robison, Brown, Nowlis & Maciejewski, P.A., Jacksonville, FL

11:00-11:15am Coffee Break 11:15-12Noon "Impact of Automation on General Aviation Safety"

Christopher Hart; Acting Administrator, NHTSA, FAA, Washington, DC 12:30pm Golf Outing

Friday, August 3

8:00-Noon Registration 8:00-9:00am Breakfast 9:00-10:00am "Legal Aspects of a Major Airline Bankruptcy: A Captain’s Perspective”

C. Glenn Cook, Jr.; Airline Captain and Attorney at Law, Atlanta, GA 10:00-11:00am"Navigating the Skies of International Aviation Accident Litigation”

Charles M. Finkel; Magana, Cathcart & McCarthy, Los Angeles, CA 11:00-11 15am Coffee Break11:15-12Noon "Taxes and Other Related Matters”

William R. Blackard, Jr.; Attorney & Counselor at Law, Jacksonville, FL 1:00pm Trap Shooting Event

Saturday, August 4

7:00am Fun/Run and Walk/Talk 8:00-Noon Registration 8:00-9:00am Breakfast 9:00-10:00am "Electronic Discovery”

Mark J. Kolber; Jones & Keller, P.C., Denver, CO 10:00-11:00am “Ethics: Circumnavigating the Buildups”

Gary W. Allen; Attorney at Law, Williamsburg, VA 11:00-11:15am Coffee Break 11:15-12:00pm LPBA Membership Meeting and Regional VP Reports1:00pm Spot Landing Event 6:00-7:00pm Cocktail Reception 7:00pm Banquet - Cocktails, Dinner, Dancing and Awards Presentations

Sunday, August 5 - Checkout

I. GOVERNMENT LITIGATION:A. Federal Tort Claims Act

1. Crash of Civil Air PatrolPlane Ashley v. United States,No. 2:07-cv-00004-FL,complaint filed (E.D.N.C.Feb. 27, 2007)

The widow of a North Carolinadeputy sheriff has lodged a $6 millionsuit against the U.S. government,claiming that pilots employed by afederally chartered company causedthe crash that killed her husband.

The pilots failed to maintain properpower, altitude and airspeed, accord-ing to the complaint filed in the U.S.District Court for the Eastern Districtof North Carolina under the FederalTort Claims Act, 28 U.S.C. § 2680.

At issue in the lawsuit brought byMay Ashley is North Carolina’s CivilAir Patrol, (CAP), a federally charteredcorporation that performs search andrescue operations, aerial reconnais-sance, disaster relief, and othermissions, according to its Web site.

The plaintiff’s 35-year-old hus-band, Richard, was a passenger in aCAP Cessna in July 2002, when itcrashed in Chowan County, N.C. Shesays the plane had been flying at lessthan 500 feet above the ground. Thewidow specifically claims the pilots’actions caused the engine to stall andthat they failed to take proper actionto restart it, land or return to an air-field.

In her action, the plaintiff contendsthat the CAP was negligent by failingto train its members about safe oper-ation procedures and regulations. The

company also failed to properlyexamine and maintain the aircraft, sheadds.

The majority of the complaintfocuses on pilots Anthony Futrell andRobert Kennedy. The plaintiff allegesthey flew the CAP plane below mini-mum safe altitudes and in a way thatexceeded the capabilities of the air-craft. The pilots also failed to preparefor, anticipate, and recover from aforeseeable change in the path, alti-tude, flight or operation of the CAPplane, according to the complaint.

2. Administrative ClaimsWojciechowicz et al. v.United States, Nos. 04-1846(RLA), 04-1856 (RLA) and04-2342 (RLA), 2007 WL512783 (D.P.R. Feb. 20,2007)

Administrative claims filed with theFederal Aviation Administration over aplane crash were sufficient to providethe U.S. government with notice ofallegations made by plaintiffs whowere not named in the claims, aPuerto Rico federal court has ruled.

The U.S. District Court for theDistrict of Puerto Rico held that theseparate administrative claims filedby Carol Wojciechowicz and her sonMichael satisfied the notice-of-claimrequirement under the Federal TortClaims Act, 28 U.S.C. § 2675 (a).

The suit stems from a January2002, plane crash near El Yunque,Puerto Rico. The plaintiffs blame neg-ligence by federal air trafficcontrollers for the accident. PilotAlexander Wojciechowicz was carry-ing his daughter Katherine Angrick;

her husband Mark; their son Heath;and Mark’s mother, Lois Angrick.

Within two years of the accidentCarol Wojciechowicz, the pilot’swidow, filed a Standard Form 95claim for damage, injury or death withthe Federal Aviation Administration.She sought both economic andnoneconomic damages for the deathof her husband. The same day herson Michael filed his Standard Form95 with the FAA, seeking damages forthe death of his sister Katherine.

Plaintiffs are required to submitsuch forms and exhaust all adminis-trative remedies before suing thegovernment under the Federal TortClaims Act. Subsequently, Carol,Michael and the other surviving child,Susan, sued the United States, seek-ing damages for the deaths ofAlexander and Katherine.

The government sought dismissalof the wrongful-death claim, arguingthat the adult plaintiffs who were notspecifically identified in the adminis-trative claims and did not fileindependent claims may not pursuejudicial relief.

U.S. District Judge Raymond L.Acosta denied the government’s dis-missal motion. In doing so, the judgenoted that, under Puerto Rico law, thefact that Carol and Michael were act-ing on behalf of the estates did notnecessarily translate into notice of theindividual claims of the members ofthe two estates.

However, Judge Acosta found theevidence presented to the FAA by theplaintiffs was sufficient to alert thegovernment as to the identity of thedecedents’ survivors: the members of


RECENT DEVELOPMENTS IN AVIATION LAWCecile Hatfield, Esq.

Cecile Hatfield has her own aviation trial practice in Miami, Florida. She has previously served as AssociateGeneral Counsel for Piper Aircraft Corporation. Ms. Hatfield was with the United States Department of Justicefor nine years as an aviation trial lawyer. She graduated from the University of Florida where she was elected tothe Hall of Fame and Mortar Board and received her law degree from the University of Miami. She is a licensedpilot and ground school instructor. Ms. Hatfield is General Counsel to The Ninety-Nines, an InternationalOrganization of over 6,000 women pilots. She is a member of the International Aviation Women’s Associationwhere she is on the Board of Directors. She is the Program Chair of the 18th Annual Aviation Law and InsuranceSymposium sponsored by Embry-Riddle Aeronautical University. Ms. Hatfield is Past President and member ofthe Board of Directors and Contributing Editor for the Lawyer-Pilots Bar Association.

each of the estates. The court heldthat the claims for the two estateswere filed the same day through thesame counsel, all bore the same lastname and the FAA denied all theclaims via a single letter. Further, thegovernment had available a mecha-nism to further explore the identity ofthe members of the estate in case ofdoubt.

3. Helicopter Crash: BenchTrialMcMahon Helicopter Ser-vices Inc. et al. v. UnitedStates et al., No. 04-74133,bench trial concluded (E.D.Mich. Jan. 26, 2007)

A Michigan federal judge is nowconsidering whether the crash of ahelicopter into a light pole on airportproperty was caused by the federalgovernment’s negligent provision ofair traffic control services. U.S.District Judge Avern Cohn of theEastern District of Michigan recentlyconcluded a five-day bench trial inthe suit brought by McMahonHelicopter Services, Inc. against theU.S. government.

McMahon and its insurer, U.S.Specialty Insurance Co., sued thefederal government, the WayneCounty Airport Authority, the WillowRun Airport and its director after oneof McMahon’s helicopters struck alight pole on the airport authority’sproperty. McMahon put forth variousnegligence claims as well as a claimfor breach of contract.

In the mid-1980s the airportinstalled the light poles adjacent to itssouth cargo ramp as part of a federal-ly funded capital improvementproject. The poles lit the ramp onlyand were shrouded, so they were notvisible to pilots, who might confusethem with navigational lights.

The poles became inoperative inthe 1990s. In October 2003, theFederal Aviation Administrationapproved the airport’s grant applica-tion to replace them. About twomonths later the McMahon helicopterwas attempting to land at the airport.While descending it struck one of theinoperative light poles, severing theaircraft’s main rotor system, whichcaused it to nosedive and crash.

The accident destroyed the heli-copter and injured crew members.U.S. Specialty settled with the defen-

dants, leaving only McMahon’s claimsagainst the United States, the airportauthority and the director. In July2006, the court granted judgment tothe defendants on all but one of thenegligence claims against the govern-ment.

McMahon contends in its trial briefthat the FAA controllers failed to warnit of the existence of unlit poles ordefective lighting at the airport andplaced the helicopter on a flight pathwhere there was a likelihood that itwould come near the poles.

The controllers failed to act as a“collective team” and exchange infor-mation to ensure the safety of theaircraft, and left the helicopter travel-ing in the dark in the path and in thevicinity of the unlit poles, McMahonalleges.

The government countered thatthe controllers did not breach anyduty to McMahon and that theiractions were not the sole proximatecause of the accident. Rather, thedefendant asserts, the crash wascaused by the pilot’s negligent deci-sion to turn left toward the southramp instead of following air trafficcontrol instructions to proceed toanother ramp.

B. Preemption1. Federal Aviation Act

Preempts Homeowners’Crash ClaimsAldana et al. v. Air EastAirways Inc. et al., No. 05-cv-1183 (JBA), 2007 WL764402 (D. Conn. Mar. 14,2007)

The Federal Aviation Act preemptsportions of the negligence claimslodged by homeowners whose resi-dences were hit by a planeattempting to land at a nearby airport,a Connecticut federal judge has ruled.U.S. District Judge Janet BondArterton of the District of Connecticutheld that the plaintiffs’ claims essen-tially mirror the federal regulations.

According to the opinion, in theearly morning of August 4, 2003, achartered Learjet owned and operat-ed by Air East Airways, Inc. wasattempting to land at the Groton/NewLondon Airport in Connecticut when itencountered a patch of poor visibilityand began to circle the landing area.

While circling, the pilots used anexcessive bank angle, causing a stall

that propelled the plane into thehomes of Glory Aldana and RosePeret. The impact set the housesablaze and woke the residents, whosustained emotional and physicalinjuries while fleeing, the plaintiffsassert. The accident killed the twopilots. Two years later Aldana andPeret filed a negligence action againstAir East Airways, Air East Manage-ment Ltd. and the estates of thedeceased pilots.

The defendants asked JudgeArterton for partial dismissal, claimingthe plaintiffs’ common-law negli-gence claims were preempted by theFederal Aviation Act of 1958. Thedefendants specifically took issuewith certain subparagraphs in six ofthe 12 counts put forth in the plain-tiffs’ complaint. Those subparagraphsclaimed negligent conduct and citedFederal Aviation Administration regu-lations.

Judge Arterton held that theFederal Aviation Act provides no fed-eral remedy for personal injury ordeath caused by the operation ormaintenance of aircraft.

The court held that the plaintiffs’common-law negligence claims basi-cally tracked those articulated underthe act’s regulations. “Thus, while thecourt holds that common-law negli-gence standards are preempted bythe FAA, under the act’s savingsclause, the plaintiffs’ right to pursuetheir negligence claims (applying FAAstandards) against the defendants isnot.”

If the plaintiffs prove that thedefendants’ allegedly negligent actsand omissions measured by FAAstandards caused their injuries, theywill be entitled to pursue all com-mon-law remedies available underConnecticut law, according to theopinion.

II. AVIATION INSURANCE CASES:A. Insurance Coverage

1. Policy ExclusionRunion v. Acuity, No.64A03-0601-cv-34, 2007WL 102321 (Ind. App. Ct.Jan. 17, 2007)

An Indiana trial court correctly heldthat an exclusion in an insurance pol-icy barred coverage for injuries apassenger suffered in a plane crash, astate appellate court has ruled. There


were no issues of material fact thatthe policy barred coverage, theIndiana Court of Appeals found inupholding summary judgment for theAcuity insurance company in adeclaratory judgment action broughtby the passenger Jack Runion.

Gene Lane and Dan Nicksic werepartners in Turbo Flite, which theyformed for the express purpose ofpurchasing an aircraft. In 2000 thecompany bought a single-enginePiper.

Indiana Climate Control, of whichLane was president, had an oralagreement with Turbo Flite allowingICC to use the aircraft. In exchange,ICC paid half the fixed expenses andall the variable expenses associatedwith its use of the aircraft in additionto a specified hourly rate.

In April 2002 Lane was piloting theaircraft in his capacity as an ICCemployee and Runion was a passen-ger in the plane. The aircraft crashedshortly after taking off from an Indianaairport, causing Runion to suffer mul-tiple injuries.

Runion sued ICC Turbo Flite andLane two years later, claiming thatLane negligently piloted the aircraft.On the same day, he filed a complaintseeking a declaratory judgment thatAcuity, ICC’s insurance carrier, had todefend and indemnify ICC in Runion’sunderlying tort suit.

Acuity claimed there was no cover-age because the policy specificallyexcluded coverage for bodily injuriessustained as a result of an aircraftcrash. The trial court agreed andgranted Acuity summary judgment,prompting Runion to appeal.

The Indiana Court of Appealsrejected Runion’s claim that theAcuity policy provided coveragebecause ICC had a contract withTurbo Flite and, as a result, Lane andNicksic assumed any liability forRunions’ injuries.

The panel also determined that therecord did not support the plaintiff’sclaims. The evidence showed thatLane and Nicksic did not discuss theassumption of risks tied to the use ofthe aircraft or whether ICC wouldindemnify Turbo Flite for losses aris-ing from ICC’s use of the plane.

Based on the contract language, areasonable inference could be madethat ICC and Turbo Flite had anagreement concerning how costs

would be shared for the use of the air-craft, the appellate court noted.However, the court held it could notreach the same conclusion aboutwhether ICC agreed to assume thetort liability of Turbo Flite.

The “insured contract” exceptionto the aircraft exclusion does notapply, and Acuity was entitled tosummary judgment, according to theappellate court. Runion had claimedthe exception would have providedcoverage for his bodily injuries basedon the contract between Turbo Fliteand ICC for the ownership, mainte-nance and use of the aircraft.

2. Coverage for Lessee ofHelicopterUnited States AviationUnderwriters Inc. et al. v.Eurocopter S.A.S. et al., No.CV 04-2367-PHX-SRB, sum-mary judgment motion,memos filed (D. Ariz. Dec.15, 2006)

An Arizona federal judge mustdetermine whether an insurance com-pany that provided coverage to thelessee of a helicopter involved in a2003 crash has a right to recover foraircraft damage.

Helicopter manufacturer Euro-copter S.A.S. filed a motion forsummary judgment in the U.S. DistrictCourt for the District of Arizona, argu-ing that damage claims United StatesAviation Underwriters, Inc. (USAU)put forth were derivative of the rightsof the helicopter’s owner. Eurocopterargued the claims were subject to lim-itations provisions in the purchaseagreement for the aircraft. USAU dis-puted the assertion that its claimswere derivative and contends theywere not barred.

The dispute stems from theNovember 2003 crash of aEurocopter-manufactured helicopter.The crash injured the pilot, flight para-medic and flight nurse. The plaintiffshave attributed the cause of the acci-dent to a loss of hydraulics.

Eurocopter sold the aircraft toTexas-based American EurocopterCorp in 2002, according to courtrecords. Wyoming-based RobertsAircraft Co. later bought the heli-copter from American Eurocopter.Roberts leased the helicopter toNative American Air Services, Inc.,(NAAS) which does business in

Arizona. NAAS insured the aircraftthrough USAU.

After the crash USAU paid Robertsmore than $1.5 million for the loss ofthe helicopter and, along withEmployers Insurance of Wausau,lodged a subrogation action againstEurocopter for strict liability, productliability and negligence. Employerspaid workers’ compensation benefitsfor those injured in the crash.

Seeking summary judgment,Eurocopter alleged USAU has nogreater rights than Roberts regardingwhether it pursues its alleged dam-ages as NAAS’ or as Roberts’subrogee. Any claim that NAAS couldbring would be derivative of Roberts’right, the defendant contends, addingthat the purchase agreement bars anyclaim for the damage to Roberts’ heli-copter.

USAU’s claims are also barredunder the economic-loss doctrine,which Eurocopter says provides thatdamage to a product can only be pur-sued under a contract claim, not as atort claim.

Eurocopter also asked the DistrictCourt for partial summary judgmenton the plaintiffs’ failure-to-warnclaims, asserting that the plaintiffscannot establish that the helicopter’sflight manual was defective or thatany such alleged defects played arole in the crash. The issues withrespect to the manual concern sec-tions allegedly addressing thehelicopter’s performance at lowspeeds after the loss of hydraulicpower.

The plaintiffs counter that they arenot bound by the disclaimers in thepurchase agreement betweenRoberts and American Eurocopter,and dispute the applicability of theeconomic-loss rule to their action.

Because NAAS, not Roberts,agreed to bear the risk of loss if thehelicopter were destroyed, NAAS hasan independent non-derivative rightto sue Eurocopter, USAU contends.

USAU and Employers furtherassert that their failure-to-warn claimscannot be summarily decidedbecause the evidence proves that thewarnings and instructions providedby Eurocopter were “woefully inade-quate and defective.” Those defectswere a substantial cause of the acci-dent, according to the insurers.


B. Runway CrashUnited States AviationUnderwriters Inc. et al. v. Cityof Chicago, No. 06 C 6769,answer filed (N.D. Ill. Jan. 16,2007)

An Illinois judge has been asked todecide whether the city of Chicagoshould pay for damage to theSouthwest aircraft that skidded off arunway in wintry weather.

United States Aviation Under-writers Inc., (USAU) one of theairline’s insurers, filed a propertydamage complaint in the U.S. DistrictCourt for the Northern District ofIllinois against the city, which owns,operates and maintains MidwayInternational Airport, where South-west Flight 1248 went off the runwayin December 2005.

The accident occurred as the pilotattempted to land the Boeing 737-700 during adverse weatherconditions that included snow, lowcloud ceilings and a tailwind. Theplane failed to stop on the runwayand crashed through a blast fenceand a perimeter fence before collidingwith several vehicles on a city street.

No one on board died, but a 6-year-old boy in one of the cars waskilled. Several personal-injury suitswere filed in Illinois state court afterthe accident, with the plaintiffs claim-ing negligence, conscious disregardfor safety and product liability againstSouthwest, Boeing Co. and the city ofChicago. The defendants removedthe suits to federal court, where theywere later consolidated.

In the property damage complaint,USAU claims the city should pay thebill for aircraft repairs because it failedto monitor the runway at MidwayAirport and clear it of ice and snow orclose it.

The city takes a different stance,citing the indemnification and insur-ance provisions in an airport use andfacilities lease agreement withSouthwest. That agreement, accord-ing to Chicago, provides that thecarrier would indemnify and hold thecity harmless from any losses and lia-bility stemming from the airline’sactions or use of the airport.

The city also claims it is named asan additional insured under an insur-ance policy held by Southwest butthat it has not been successful in its

attempts to obtain a copy of the poli-cy from USAU.

Furthermore, any damages sus-tained by Southwest were caused byits failure to properly train its pilots,properly use runway condition andwind conditions reports, and properlyuse the plane’s thrust reversers.USAU’s allegations, Chicago adds inits affirmative defenses, call intoquestion the operation and mainte-nance of the airport, which areprotected discretionary functions.

Finally, the city cites lack of proxi-mate cause, preemption, compliancewith applicable statutes and regula-tions, and the effects of “acts of God”such as weather conditions.

III.AIR CARRIER CASES:A. Montreal Convention

1. Widow Sues OverHusband’s Death InAirplane BathroomWatts v. American AirlinesInc. et al., No. 1:07-cv-0434-RLY-TAB, complaint filed(S.D. Ind. Apr. 9, 2007)

The widow of a man who had afatal heart attack in the lavatory dur-ing an American Airlines flight hassued the carrier, alleging her husbandwas not discovered until more thantwo hours after the flight landed.

Carolyn Watts filed suit in the U.S.District Court for the Southern Districtof Indiana, alleging the actions of thecarrier and parent AMR Corp. consti-tuted an “accident” under theMontreal Convention on internationalair travel. The Montreal Conventionreplaced the similar WarsawConvention, amending provisionsrelated to compensating the victimsof air disasters.

In April 2005, Watts’ Husband,Taisuke Matsuo, was returning toChicago after a round-trip flight toJapan on American Flight 154 whenhe went to the aircraft’s lavatory,according to the complaint.

While inside, he had a heart attackand died. The flight went on to land inChicago around 4 p.m. Matsuo wasfound more than two hours later by anaircraft cleaning crew. The plaintiff, anIndiana resident, claims the defen-dants failed to recognize that herhusband was not in his seat and waslocked in a lavatory for a significantperiod of time.

The airline and its parent also dis-regarded industry standards and itsown policies and procedures by land-ing and deplaning with Matsuo lockedin the lavatory, the plaintiff argues,while failing to attend to Matsuo’smedical emergency.

The plaintiff contends that underArticle 17 of the Montreal Convention,American Airlines’ conduct amountedto an accident because it was anunexpected or unusual event thatwas a causal link to Matsuo’s death.

B. Preemption Under AirlineDeregulation Act1. Federal Court Sends Suits

Against Comair Back ToState CourtIn re: Air Crash At Lex-ington, Ky., Aug. 27, 2006,Nos. 5:06-cv-316-KSF,5:06-cv-313, 5:06-cv-327,5:06-cv-333, 5:06-cv-337,5:06-cv-339, 5:06-cv-340,5:06-cv-371, 5:06-cv-392,5:06-cv-411, 5:06-cv-412,5:06-cv-413, and 5:06-cv-006, 2007 WL 1119940 (E.D.Ky. Apr. 13, 2007)

Thirteen wrongful-death cases filedagainst Comair in the wake of anAugust 2006 crash in Lexington, Ky.,are heading back to state court after afederal judge found that the plaintiffsallege only state law causes of action.

U.S. Senior Judge Karl S. Foresterof the Eastern District of Kentuckyrejected Comair’s contention that fed-eral law preempted the state lawclaims of the plaintiffs, whose familymembers died in the crash of Flight5191.

The accident occurred when theaircraft attempted takeoff fromRunway 26 rather than Runway 22 atLexington’s Blue Grass Airport.Everyone on board the 50-seat com-muter jet bound for Atlanta was killed,with the exception of the co-pilot,who was seriously injured.

Runway 26 is 3,500 feet long, halfthe length of Runway 22, according topublished reports. Unable to gain alti-tude because of the shorter runway,the plane hit several trees and otherobstacles before bursting into flamesat the end of the runway.

The plaintiffs originally filed theirwrongful-death suits in Kentuckystate court, but Comair removedthem to federal court, claiming they


raised federal issues and are thuspreempted. The cases were consoli-dated before the Eastern District ofKentucky for pretrial purposes.

Seeking remand, the plaintiffs saidComair failed to meet its burden ofproving that federal jurisdiction exist-ed. They noted that their causes ofaction were created by state law andthey relied only on state law for relief.

In addition Comair’s claim of pre-emption did not support jurisdiction infederal court, the plaintiffs argued,and the airline failed to demonstrateCongressional intent to preempt allstate law causes of action in aviationcases.

Judge Forester agreed and sentthe cases back to state court afterfinding a lack of original federal ques-tion jurisdiction. The court found thatthe fact that federal law might providea “federal answer” or defense to theplaintiffs’ claims does not create afederal question sufficient to supportjurisdiction exclusively in federalcourt.

The Federal Aviation Act does notcompletely preempt state law causesof action for wrongful-death or sur-vivor benefits in aviation cases. To theextent Comair relied on FAA preemp-tion as a basis for removal, its reliancewas misplaced, Judge Forester said.This court does not have subject mat-ter jurisdiction based on completepreemption of wrongful-death claimsby the FAA.

C. Seaplane Crash1. $51 Million Settlement

Ends 12 Suits Over MiamiSeaplane CrashEllis v. Flying Boat Inc. etal., No. 06-20066, settle-ments approved (S.D. Fla.Jan 26, 2007)

The families of several passengerskilled when a seaplane crashed offthe coast of Miami have entered intoa $50 million settlement with the com-pany that leased the aircraft.

The U.S. District Court for theSouthern District of Florida approvedthe settlements in late January, end-ing the litigation stemming from theDecember 2005 crash of the vintageseaplane. The defendant’s insurerswill pay the settlement funds, accord-ing to the agreement.

At the time of the crash the air-plane was on its way from Miami to

Bimini, Bahamas. According to pub-lished reports, the accident, whichkilled all 20 people on board,occurred when the right wing of thevintage plane allegedly separatedfrom the fuselage as a result of crack-ing and corrosion.

The victims’ families sued FlyingBoat Inc., which does business asChalk’s International Airlines andChalk’s Ocean Airways; SeaplaneAdventures LLC, which owns the air-craft and leased it to Flying Boat; andFrakes Aviation Inc., which performedmaintenance on the subject airplane.

The settlement affects lawsuitsbrought by Felix Ellis, Freddie Rolle,Kendrick Sherman, Maureen Smith,Amill Levarty, Richard Tutecky, Jr.,Genevieve Dean, Kim Wilson,Granville Romer and three actionsbrought by Rosethal Stuart.

D. New Actions Filed OverMidair Collision In BrazilDaSilva et al. v. Lepore et al.,No. 07-20846, complaint filed(S.D. Fla. Mar. 30, 2007)

An executive jet crew’s failure tomaintain proper altitude and commu-nication with air traffic controllers wasamong the causes of a midair colli-sion with a Brazilian airliner over theAmazon rainforest, according to thefamilies of passengers killed in thecrash.

Plaintiff Jorge Feliciano OliveriraDaSilva’s suit is one of 19 actionsinvolving some of the 154 passengerskilled in the September 2006 acci-dent, according to a press releaseissued by plaintiff attorneys fromPodhurst Orseck PA in Miami.

DaSilva’s son was one of the crashvictims. According to DaSilva’s com-plaint, filed in the U.S. District Courtfor the Southern District of Florida, hisson was on board Gol TransportersAeros Flight 1907 when it collidedwith an ExcelAire Embraer Legacy600 business jet.

The Legacy was on its maiden voy-age heading north from Sao Jose’dos Campos to the United States.The plaintiff says the plane was flyingat 37,000 feet, an altitude that did notcorrespond to the flight plan and con-tradicted established norms thatreserved odd-number altitudes forsouthbound flights.

Gol Flight 1907, Da Silva contin-ues, was flying south from Manaus,

Brazil, to Brasilia at 37,000 feet,which was a proper altitude for thatdirection of flight. The aircraft collid-ed, causing the Gol aircraft to crash inthe rainforest, killing all 154 passen-gers and crew. The ExcelAire jet wasable to land safely with it seven occu-pants uninjured.

The plaintiffs, who are citizens ofBrazil, contend that the ExcelAire jet’stransponder was not operating at thetime of the crash. The transponder isa critical part of an aircraft’s “trafficcollision avoidance system,” a com-puterized avionics device designed toavoid midair collisions by transmittingthe position, altitude and direction oftravel to other planes and groundradar The system identifies potentialmidair collisions and affords thecrews of converging aircraft the infor-mation needed to avoid a potentialcollision.

When the ExcelAire jet’s transpon-der stopped functioning, it renderedthe collision avoidance system inop-erative. In addition the plaintiffscontend that the air traffic controlsystem, which was supposed to pro-vide radio and radar communicationswith the ExcelAire jet and Gol aircraft,was not operating properly at the timeof the collision.

The defendants include ExcelAireService Inc., the Legacy’s owner, andpilots Joseph Lepore and Jan PaulPaladino. Other defendants includetransponder maker Honeywell Inter-national Inc., Honeywell agentCorporation Service Co., and Florida-based aircraft manufacturer EmbraerAircraft Customer Services, Inc.Lockheed Martin Corp., RaytheonCo. and Amazon Technologies Co.,which made the air traffic controlsystem used at the time of the acci-dent, are also defendants.

IV.PRODUCTS LIABILITY:

A. General AviationRevitalization Act1. Pridgen et al. v. Parker

Hannifin Corp. et al.,Nos. 8EAP 2005 and 9 EAP 2005,2007 WL 528053 (Pa. Feb.21, 2007)

The Pennsylvania Supreme Courthas reaffirmed that the GeneralAviation Revitalization Act’s rollingprovision protected aircraft partsmanufacturers from liability stemming


from the crash of a Piper airplanebecause the companies did not sup-ply the components that allegedlycause the crash.

The court issued the decision aftera request for reargument lodged bythe representatives of several victimsof the August 1999 crash, whichoccurred as the 31-year-old Piperwas departing from an airport in NorthLima, Ohio.

Several on board were killed or suf-fered serious injury. Karen Pridgenand other plaintiffs representing thecrash victims and their estates assert-ed claims of negligence, strict liability,and breach of express and impliedwarranties against Parker HannifinCorp., Textron Inc. and AVCO Corp.,among others.

The three companies designed,manufactured and sold the originalengine and fuel system components.The plaintiffs claim that faulty replace-ments for these components causedthe crash. They contend that theseparts were replaced and overhauledwithin 18 years of the accident date.

The defendants sought summaryjudgment based on GARA, 49 U.S.C.§ 40101, which immunizes airplanemanufacturers from liability if a planeor its parts are at least 18 years old.The act’s rolling provision applies the18-year period to new systems orother parts added to an aircraft.

The plaintiffs challenged that con-tention because the defendants heldthe Federal Aviation Administrationtype certificate for the crashed Piper.They further asserted that GARA’srolling provision did not apply, mean-ing the companies could not reap thebenefit of the statute’s 18-year limita-tion relative to replacement partsspecified in the type certificate.

A Pennsylvania trial court deniedthe defendants’ motions. The courtfound that because the defendantsdesigned the engine and held thetype certificate for it, GARA’s rollingprovision could apply. A state appealscourt said the orders were not subjectto appellate review.

After a series of subsequent rul-ings, remands and appeals, thePennsylvania Supreme Court in 2005agreed with the defendants that thedenial of the motions grounded onGARA met all the elements of the“collateral order” doctrine, whichallows the appeal of a final order

based on an issue separate from themerits of the case.

The justices reviewed the trialcourt’s decision on the merits. TheSupreme Court held that drawing adistinction between manufacturingand design processes for the purpos-es of GARA would undermine thefederal scheme to relieve the aviationindustry of the burden of long-termliability.

The Pennsylvania Supreme Courtfound that the trial court erred when itdetermined that status as a type-cer-tificate holder or designer wassufficient to implicate GARA’s rollingprovision, even in instances in whichthe defendants do not actually manu-facture the relevant replacementparts.

The plaintiffs sought reargument,claiming that the Supreme Court’sopinion adopted a too-narrowapproach to GARA’s rolling provision.They asserted that GARA contains nolanguage limiting the application ofthe rolling provision exclusively to thephysical manufacturer or seller of aparticular replacement part.

The plaintiffs argued that althoughthe defendants did not actually sup-ply the replacement parts, they putthe components out as their own, andthose parts that allegedly caused theaccident were installed according tothe manufacturers’ requirements.

The Pennsylvania Supreme Courtwas not persuaded and reaffirmed itsprior decision. The court said the pro-ponents of the GARA legislationrecognized the essential role of pre-ventative maintenance in the aviationindustry. In the absence of GARArepose, the defendants may be liablefor design defects in replacementparts or the aircraft systems in whichthose components function.

However, the justices added, thelaw’s purpose would be undermined ifthe rolling provision were triggered bythe status of original aircraft manufac-turer, type-certificate holder ororiginal designer.

B. Jurisdiction1. Cessna Lacks Sufficient

Contacts to Remain InIllinois Crash SuiteWinston v. Martinair Inc. etal., No. 06-cv-05130, 20007WL 684113 (N.D. Ill. Feb. 26,2007)

Cessna Aircraft Co. has been dis-missed from a wrongful-death andsurvival action stemming from thecrash of one of its planes. An Illinoisfederal judge has determined that thecourt lacks jurisdiction over the com-pany.

U.S. District Judge James B. Zagelof the Northern District of Illinois heldthat the aircraft manufacturer lackedsufficient contacts with the state tojustify jurisdiction. The court deter-mined that to maintain jurisdiction,Cessna’s contacts with Illinois mustbe related to the airplane crash atissue.

The court issued the decision inthe suit by Nina Winston, whose hus-band was a passenger on the CessnaCitation 560 plane and died when itcrashed while attempting to land atPueblo Memorial Airport in PuebloCity, Colorado. The flight departedfrom Virginia and was headed toCalifornia.

Winston filed her action in statecourt against aircraft manufacturersCessna and parent Textron Inc., deic-ing system maker Goodrich Corp.and the plane’s owner and operatorsMartinair Inc. and Circuit City StoresInc.

Martinair and Circuit City failed toexecute a proper landing maneuverand did not maintain sufficient air-speed to prevent the crash, shealleged, also claiming that the com-panies failed to appropriately monitorthe existing weather and icing condi-tions at the time of the accident.

Winston further contended thatCessna designed and manufacturedthe aircraft with an insufficient deicingsystem and inadequate warning sys-tem to alert the pilot about theaccumulation of ice on the plane. Theaircraft was designed and manufac-tured “without adequate engineeringcoordination,” Winston argued, alsotaking issue with the manuals thataccompanied the plane. Winstonasserted that Cessna had sufficientcontacts with Illinois through itsCessna Pilot Centers and an agree-ment with Elliot Aviation, an aircraftrefurbisher and seller.

Judge Zagel determined thosecontacts were not directly related tothe controversy because the plaintiffdid not claim the aircraft was sold atElliot Aviation or that the pilot wastrained at one of the Cessna pilot


training centers in Illinois. The courtfound there was no evidence that theaircraft entered Illinois at any pointduring its flight.

The court held that the flight itselfwas not related to Cessna’s Illinoiscontact. The amended complaintalleged various theories of productsliability, but Mrs. Wilson had notoffered evidence linking those allegeddefects to Cessna’s contacts withIllinois.

Cessna’s business relationshipwith the training facilities and withElliott Aviation are “simply collabora-tive efforts,” and the defendant doesnot own or operate those businesses,the court held.

2. Lack of Federal QuestionJurisdictionZahora et al. v. PrecisionAirmotive Corp. et al.,No.2:06-cv-03520-TMG, 2007WL 765024 (E.D. Pa. Mar. 8,2007)

A lawsuit brought against an air-craft engine repair shop andmanufacturer over the crash of aBeech Travel Air E-95 is heading backto state court after a Pennsylvaniafederal judge concluded that no fed-eral question jurisdiction exists.

U.S. District Judge Thomas M.Golden of the Eastern District ofPennsylvania held that exercisingjurisdiction over the action brought byStephanie Zahora and Linda Toscanowould risk a flood of state claimsbeing removed to federal court simplybecause they contain embedded fed-eral issues.

The women serve as co-executorsof the estates of Ronald and DeniseRuel, who were killed in July 2004,when the Beech Ronald Ruel waspiloting crashed in Atlantic City, NewJersey.

The plaintiffs contend in their suit,originally filed in Pennsylvania statecourt, that the fuel injectors weredefectively designed and liable tocause in-flight engine failure.Consequently the engines were notairworthy and had been improperlycertified.

The suit alleges that defendantrepair shop Teledyne Services, Inc.failed to warn of the defective condi-tion of the engines’ fuel deliverysystems, failed to adequately performmaintenance and inspection, and

improperly returned the aircraft toservice.

Teledyne and engine makerPrecision Airmotive Corp. removedthe suit to the Eastern District ofPennsylvania, on the basis that theplaintiffs’ claim regarding the fuelinjectors’ defects rendered theTextron engines not airworthy impli-cated a significant federal interest.

Seeking remand, the plaintiffsargued that neither the accident northeir state law claims implicated fed-eral jurisdiction. They challenged thedefendants’ contention that jurisdic-tion was appropriate because theirclaims involve Federal AviationAdministrations regulations.

The court sided with the plaintiffsand remanded the action after con-cluding that the claims did notpresent a federal question underGrable & Sons Metal Products Inc. v.Darue Engineering & Manufacturing,545 U.S. 308 (2005).

In Grable the U.S. Supreme Courtheld that a state law claim might con-tain a federal question of sufficientimportance to confer jurisdiction on adistrict court. However, to pass theGrable test and permanently land infederal court, the claim must raise afederal issue. In addition, the issuemust be substantial and in disputeand must not interfere with a con-gressionally approved balance offederal and state responsibilities.

Grable is one of a “special andsmall category” of cases involving anearly pure issue of law rather thanthe factbound inquiry that exists inaviation litigation, according to thecourt.

The court stated that exercisingjurisdiction over this case essentiallywould open the floodgates for attract-ing lawsuits for the removal of casesraising state law claims with embed-ded federal issues. This risk is presentnot only in the aviation context, butalso in other areas of extensive feder-al regulation, such as food and druglaw.

The court noted that the U.S.Supreme Court has declined to allowalleged branding violations of theFood, Drug and Cosmetic Act to cre-ate federal question jurisdiction.

If the federal labeling standardwithout a federal cause of actioncould get a state claim into federalcourt, so could any other federal

standard without a federal cause ofaction, the court determined, citingGrable.

V. MISCELLANEOUS:A. Inverse Condemnation

1. U.S. Supreme CourtUpholds $16 Million Award To NevadaLandownerMcCarran InternationalAirport et al. v. Sisolak, No.06-658, cert. denied (U.S.Feb. 20, 2007)

The U.S. Supreme Court hasrefused to review a Nevada statecourt’s decision that height restric-tions within the approach zone of aLas Vegas airport constituted a “tak-ing” of airspace above private land,upholding a $16.6 million verdict for alandowner who said the restrictionsaffected the development of the site.

The Superior Court refused toreview the petition for writ of certiorarifiled by McCarran InternationalAirport and its owner, Clark County,Nevada.

McCarran and the county lost asuit brought by Steve Sisolak, whoclaimed various height-restrictionordinances issued by the county lim-ited the development of his 10 vacantacres and impeded his ability to sellthe land.

In addition to challenging theheight restrictions, Sisolak said lowand frequent flights over his land fromMcCarran devalued the property bysubjecting it to noise, dust and fumes,which constituted a compensabletaking.

A state court jury awarded him$6.5 million for inverse condemna-tion, and the trial court added costs,attorney fees and interest, bringingthe total award to more than $16.6million.

In an inverse condemnation thelandowner seeks to force a govern-ment agency to exercise eminentdomain and give him fair compensa-tion for land rendered less valuablethrough the agency’s actions.

A divided Nevada Supreme Courtupheld the verdict, concluding thatSisolak had a valid property interest inthe airspace above his land and thatthe county ordinances authorized the


(Continued on Page 25)

The 2004 Fourth of Julycelebration in Atchison hadnothing to do with AmeliaEarhart. 2004 was the bicen-tennial of the Lewis & Clarkexpedition, and major cele-brations were planned tocoincide with their trek fromSt. Louis to the Pacific. Lewis& Clark celebrated Indepen-dence Day 1804 on thebanks of the Missouri River inAtchison, Kansas, and a

major commemoration was planned.Our July 4, 2004 flying adventure

begins in Atlanta, Georgia. My familyand I take part in the Peachtree 10K

race every year, a challenging rundown Peachtree Street in 90+degree weather. We then boardedour airplane and headed for St.Louis. The controllers at LambertField gave us an up close look atthe Gateway Arch enroute tolanding, our first clue that wewere joining the Lewis & Clarktrail westbound. A quick refueling,and we headed west to Atchison,Kansas. Lewis & Clark needed 52days to cover the distance, themiracle of aviation allowed us tomake it in 2 hours.

Amelia Earhart field is a narrow3,000 foot asphalt runway in the mid-dle of a large corn field looking out onthe rolling Midwest plains. Touchingdown on Runway 16, it was clear we

had arrived in the heart ofAmerica. This is what a smalltown airport in the late 1930’slooked like; this was a journeyback in time.

A short cab ride and we werein the middle of the Fourth of Julycelebration. The banks of theMissouri River were crowded withthousands celebrating the Lewis& Clark bicentennial. TheAtchison, Kansas downtown his-toric district appears much as itdid when its most famous daugh-ter was born in 1897. The

The disappearance ofAmelia Earhart is one of thelongest running mysteries inthe history of aviation. Shevanished on the next-to-lastleg of her 1937 global flight,a 2,556 mile trip from NewGuinea to Howland Island.Relying on celestial naviga-tion under an overcast sky, itis not surprising that shefailed to find her destinationbefore fuel ran out. Keep inmind that Howland Island was noth-ing more that a sand bar two mileslong and three-quarters of a mile wide,with a maximum elevation of 35 feet.

Most historians agree she ranout of fuel, but her ultimate fatehas been a topic of discussion forgenerations. One theory is thatshe ditched the aircraft, and itremains in deep water. A secondtheory is a ditching close enoughto land for Amelia to have sur-vived. The ending of this theoryusually has Amelia dying in captiv-ity, although an alternate versionfeatures her secret return to theUnited States and spending therest of her days as a housewife inNew Jersey.

Generations have searched forAmelia, and another expedition to theSouth Pacific is getting under way asof this writing. The label of being onthe top on everyone’s missing per-sons list unfortunately overshad-ows what Amelia Earhartaccomplished. She was anexplorer, adventurer and animportant champion for women’srights. To understand Amelia, ithelps to explore where she camefrom.

I never planned to search forAmelia, but here is how I hap-pened to find her. In planning ouraerial cross country from ourhome in Florida to the LPBA 2004summer meeting in Sun River,Oregon we calculated that we

would spent the night of July 4thsomewhere in the middle of theUnited States. My wife Bridgetlearned of a major July 4th celebra-

tion taking place in Atchison, Kansas.Consulting an airport directory, Ifound that Atchison had an airport(K59) named “Amelia Earhart Field.”Atchison was Amelia’s hometown.

SEARCHING FOR AMELIAEd Booth, Jr.


celebration that day was to honor apair of explorers who stopped byAtchison 93 years before the birth ofAmelia Earhart.

As night fell, we headed up thebluff overlooking the Missouri River.We found ourselves on North TerraceStreet, and looked for a good vantagepoint to watch the fireworks display.Finding a spot, we sat down in thefront yard of a large Victorian home.Only then did I realize I was in AmeliaEarhart’s front yard! I recognized itfrom photographs I had seen, and itwas pure magic being there as theFourth of July fireworks beganexploding overhead.

The home at 223 North TerraceStreet in Atchison was built in the1860’s by Amelia Earhart’s maternalgrandfather. It sits on a 300-foot highbluff, overlooking the Missouri River.Amelia was born in the home on July24, 1897, and spent much of herchildhood there. Amelia and heryounger sister Muriel played on thesurrounding streets, and her spirit ofadventure took hold in this communi-ty. As a child she must have heardtales of Lewis & Clark passingthrough Atchison on their greatadventure.

Amelia’s birthplace was acquiredby the Ninety-Nines in 1984, and hasbeen restored to its condition at thetime of Amelia’s birth. It is open to thepublic, and houses a museum andgift shop.

Departing Atchison the next morn-ing, we flew over the Amelia EarhartEarthwork, a one acre portrait ofAmelia located on the edge of town.

If you want to search for Amelia,may I suggest you look not in theSouth Pacific, but in the town of

anniversary of her disappearance willbe as well publicized as any currentaviation event.

I know I will never forget the expe-rience of, after a long day of crosscountry flying, watching Fourth ofJuly fireworks from Amelia Earhart’sfront yard.


Atchison, Kansas. By walking thestreets of her town and neighbor-hood, you begin to understand whatshaped her life. She died just prior toher fortieth birthday, yet seventyyears after her disappearance, herlegacy looms large over aviation andAmerican culture. The seventieth

Taking Care ofBusiness

The tail of Elvis Presley'sConvair 880.

The story of the Tuskegee Airmen,African-American aviation heroes ofWorld War II, is well-known and wor-thy of recognition by the modern U.S.military. To that end, the Air Forcehosted a special reception honoringthe Tuskegee Airmen at theHandleman Sky Ranch, a private air-port in Michigan, on July 24, 2003.The reception was the kick-off eventof an air show at the Selfridge AirNational Guard Base, which was tobegin the next day with a perfor-mance by the Air Force Thunderbirds.The Selfridge Coast Guard AirStation, located 25 miles southeast ofHandleman Sky Ranch, used two ofits HH-65A Dolphin helicopters totransport Thunderbird personnel tothe reception and back. The HH-65Ais a twin turbine-engine helicopterwith a maximum gross weight of9,200 pounds and main rotor diame-ter of 39 feet. Well-suited for searchand rescue and law enforcement mis-sions, it is not a quiet aircraft.

At 7:00 p.m., while the reception atHandleman Sky Ranch was under-way, Mary Mikalich and her husbandAlbert arrived at the Rochester HillsStables (RHS), six miles to the south-east, for Mary Mikalich’s ridinglesson. Mrs. Mikalich’s lesson beganat 8:00 p.m. in one of the riding rings.Twenty people were present, eitherwatching or participating in the ridinglessons. Mr. Mikalich watched hiswife from a nearby picnic table. Thelesson began uneventfully, but endedwith a call to 911 to summon anambulance.

At approximately 8:30 p.m., Lt.Cdr. Baravik, the Coast Guard pilot ofthe HH-65A designated CG 6506,prepared to depart Handleman SkyRanch for the Air Station with fourThunderbird personnel on board.Around 8:38 p.m., he took off into the

wind (which was from the north), exe-cuted a climbing left-hand turn, andthen conducted a fly-by over theranch at an altitude of 150 feet aboveground level (AGL). After completingthe fly-by, he climbed to a cruisingaltitude of 1,500 feet above mean sealevel (MSL) while proceeding towardthe Air Station. RHS was directlybeneath his flight path.

At 8:40 p.m., Mr. Mikalich andother witnesses heard a helicopterapproaching and then saw it fly over-head, straight and level, northwest tosoutheast. As this helicopter, whichhappened to be CG 6506, passedover the stables, Mrs. Mikalich’shorse became spooked and boltedtoward a group of horses standing atthe other end of the ring. Mrs.Mikalich tried, unsuccessfully, to turnher horse away from the others. Butthe next moment, the horse gave akick, bucked up and threw its hindquarters in the air. She fell off of herhorse and hit the ground, first on herfeet, then on her side, and finally onher head. By this time, the helicopterwas gone. Fifteen minutes after Mrs.Mikalich was thrown from her horse,CG 6506 landed at the Air Station.

Plaintiffs Mary and Albert Mikalichdetermined that the Coast Guardoperated the helicopter that spookedher horse and filed a Federal TortClaims Act (FTCA) lawsuit against theUnited States. Mary Mikalich soughtreimbursement for medical costsincurred as well as non-economicdamages. Her husband sought dam-ages for loss of consortium andnegligent infliction of emotional dis-tress. The United States deniedliability. In December 2006, the par-ties tried the case in the United StatesDistrict Court for the Eastern Districtof Michigan before Judge MarianneO. Battani.

Minimum Safe AltitudePlaintiffs’ primary argument was

that the Coast Guard pilot breached aduty of care established by 14 C.F.R.§ 91.119, the Federal AviationRegulation (FAR) setting forth mini-mum safe altitudes for cruising flight,by flying low over RHS. This regula-tion provides:

Except when necessary for takeoffor landing, no person may operatean aircraft below the following alti-tudes:(a) Anywhere. An altitude allowing,if a power unit fails, an emergencylanding without undue hazard topersons or property on the surface.(b) Over congested areas. Over anycongested area of a city, town, orsettlement, or over any open airassembly of persons, an altitude of1,000 feet above the highestobstacle within a horizontal radiusof 2,000 feet of the aircraft.(c) Over other than congestedareas. An altitude of 500 feet abovethe surface, except over openwater or sparsely populated areas.In those cases, the aircraft may notbe operated closer than 500 feet toany person, vessel, vehicle, orstructure.(d) Helicopters. Helicopters may beoperated at less than the mini-mums prescribed in paragraph (b)or (c) of this section if the operationis conducted without hazard topersons or property on the surface.In addition, each person operatinga helicopter shall comply with anyroutes or altitudes specifically pre-scribed for helicopters by theAdministrator.The parties disputed whether the

court should evaluate the flight undersubsection (b) or (c). Plaintiffs con-tended that subsection (b) applied,

GOVERNMENT LITIGATIONEquines and Turbines

Steven A. Kirsch

The author is a Trial Attorney with the Department of Justice Aviation & Admiralty Litigation Section inWashington, D.C. He also holds a commercial pilot certificate with single-engine, multi-engine and instrumentratings, and is a certified flight instructor. His views do not necessarily reflect those of the Department of Justice.


which establishes a minimum safealtitude of 1,000 feet AGL over “con-gested areas” of cities, towns orsettlements. The court quickly reject-ed Plaintiffs’ description of RHS as“congested,” in light of evidence thatthe stables were located on a 10-acresite nestled among trees, with houseson large lots in the surrounding area.Contrary to Plaintiffs’ contention, thepresence of a trailer park across thenearest road to the north of RHS didnot, in the court’s view, convert thesemi-pastoral environs of RHS into a“congested” area.

Having lost the “congested area”argument, Plaintiffs next assertedthat the proper minimum safe altitudewas nonetheless 1,000 feet AGLbecause RHS, with a total of 20 rid-ers and spectators on a ten-acre site,constituted an “open air assembly ofpersons.” The court found this posi-tion unpersuasive, reasoning that thisregulatory phrase must be construedin light of its placement in a subsec-tion dealing with “congested areas.”The presence of 20 people on a 10-acre site simply could not be equatedwith a congested area of a city, townor settlement that would justify thehighest minimum safe altitude. Thecourt instead accepted the interpre-tation of the United States’ pilotexpert, Smith Kalita, that the phrase“open air assembly of persons”refers to crowds at stadiums, outdoorconcerts and the like. Judge Battanifurther noted that if Plaintiffs’ con-struction of the regulation were cor-rect, a pilot would violate theregulation by flying below 1,000 feetAGL over a backyard barbeque.

The United States contended thatsubsection (c), which establishes aminimum safe altitude of 500 feetAGL, applied to the RHS environs. Mr. Kalita, and the three Coast Guardhelicopter pilots who also were calledas witnesses, testified that this sub-section governed because RHS fellinto the middle-ground between“sparsely populated” and “congestedareas,” which is defined by the regu-lation as “other than congestedareas.” The court agreed, and deter-mined that it would evaluate theoverflight based upon whether it wasconducted at or above 500 feet AGL.

The court then turned to determin-ing the altitude at which CG 6506 flewover RHS. Plaintiff Albert Mikalich, a

student pilot of fixed-wing aircraft andowner of a surveying business, testi-fied at his deposition that in hisopinion, the helicopter flew over RHSat 500 feet AGL. At trial, however, hediscredited his prior observation infavor of that of his wife’s ridinginstructor, who claimed to have the“best seat in the house.” She testifiedon the stand that the helicopter flewover RHS at 400 feet AGL. Severaleyewitnesses at the stables also tes-tified that this particular helicopterflew much lower than the CoastGuard helicopter flights that hadpassed nearby earlier in the day.

Plaintiffs also relied upon a con-temporaneous written statementmade by the pilot of the secondCoast Guard HH-65A that had beenshuttling Thunderbird personnel tothe reception. That pilot wrote that heflew each mission at 400 feet AGLusing the autopilot’s altitude holdmode.

The United States disputedPlaintiffs’ evidence and provided asolid basis for its contention that CG6506 flew over RHS at or above 500feet AGL. The pilot of the incidenthelicopter, Lt. Cdr. Bavarik, testifiedthat CG 6506 reached its cruising alti-tude of 1,500 feet MSL less than onemile from Handleman Sky Ranch andwithin one minute of the fly-by, andremained at that altitude until descentfor landing at the Air Station. He fur-ther stated that while frequentlyscanning his flight instruments, henever observed his barometric altime-ter reading below 1,500 feet MSLduring the cruise portion of the flight.Supporting the pilot’s testimony, thepetty officer seated in the back of CG6506 told the court that the helicopterwas at a safe altitude of at least 500feet AGL during cruising flight.Although not a pilot, he based his tes-timony on years of experience flyingin helicopters. Had the altitude of thisflight deviated from the norm, hewould have noticed. The court foundthe pilot and the petty officer to becredible witnesses.

In order to determine the heli-copter’s altitude above the ground asit passed over RHS, the court had toconsider the elevation of the terrainabove mean sea level. As the heli-copter flew southeast from Handle-man Sky Ranch to the Air Station, theterrain continuously sloped down-

ward. The elevation at HandlemanSky Ranch was 1,162 feet MSL, whilethe elevation at the Air Station was579 feet MSL. Thus, a flight at 1,500feet MSL in the vicinity of HandlemanSky Ranch would only be at 333 feetAGL there, but rise to 921 feet AGLby the time it reached the Air Station.The elevation of RHS is not depictedon aeronautical charts. Fortunately,during the discovery phase of the liti-gation, Plaintiffs conducted a surveyof RHS and determined its elevationto be 953 feet MSL. Thus, if the heli-copter overflew RHS at 1,500 feetMSL, this would equate to 547 feetAGL, which was in compliance with14 C.F.R. § 91.119(c).

Helicopter pilot expert Smith Kalitaenhanced the Government’s casewith technical testimony concerningaltimeters and air pressure. He toldthe court that the type of barometricaltimeter in the Coast Guard heli-copter has a tolerance of plus orminus 20 feet, which meant that if itread 1,500 feet MSL as the aircraftoverflew RHS, the helicopter wouldhave been between 1,480 - 1,520 feetMSL or 527 - 567 feet AGL. He alsonoted that atmospheric pressure hadactually increased in the few hoursbetween the time when the pilot lastadjusted his barometric altimeter andthe time of the incident. As a result,the barometric altimeter read lowerthan the helicopter’s actual MSL alti-tude. In other words, the altitude ofoverflight was higher than that actual-ly shown on the instrument.

Plaintiffs could not overcome theGovernment’s presentation. JudgeBattani was not persuaded by thetestimony of Mrs. Mikalich’s ridinginstructor, as she observed the heli-copter only for a few seconds while itwas approaching and did not look upat it again. Her attention was focusedon her students. The eyewitness tes-timony of other persons at the stablessupporting Plaintiffs’ case did notconvince the court either. The courtdetermined that because the earlierflights were further away from RHSlaterally than the incident helicopter,those helicopters appeared higher.Finally, the trial testimony of the otherCoast Guard pilot demonstrated thathis written claim that he flew each legat 400 feet AGL using the autopilot’saltitude hold mode simply was notpossible. He admitted that the alti-


tude hold function is tied to the baro-metric altimeter, which only measuresaltitude above mean sea level. Whena flight is conducted over sloping ter-rain at a constant MSL altitude, itsaltitude AGL will be constantly chang-ing. The court noted that had he sethis altitude hold function to maintain400 feet MSL, which was the onlyreasonable interpretation of his writ-ten statement, he would havecrashed into rising terrain while flyingnorthwest from the Air Station towardHandleman Sky Ranch.

Based on all of the evidence, thecourt found that CG 6506 overflewRHS above 500 feet AGL, whichplaced it in compliance with FAR91.119(c), the minimum safe altitudefor “other than congested areas.”Accordingly, the court did not need toconsider whether the flight compliedwith subsection (d), which allows heli-copters to fly at even lower altitudes“if the operation is conducted withouthazard to persons or property on thesurface.”

Application of the Coast Guard Air Operations Manual

After losing the argument that theCoast Guard violated the federal min-imum safe altitude regulation,Plaintiffs contended that the UnitedStates nonetheless should be heldliable because the pilot breached thefollowing provision of the CoastGuard Air Operations Manual:

Flights of Coast Guard Aircraftshall cause a minimum of annoy-ance to persons and activities onthe ground. It is not sufficient thatthe pilot is satisfied that no personis actually endangered. The pilotmust exercise enough caution tobe assured that no person on theground could reasonably believethat they or their property is endan-gered.The court did not accept Plaintiffs’

fallback position for a number of rea-sons. First, Plaintiffs cited no authori-ty for their proposition that thisinternal agency manual constituted afederal regulation. Second, the citedprovision of the manual was not evenapplicable to the flight. The uncontro-verted testimony of the Coast Guardpilot and the United States’ heli-copter pilot expert was that this pro-vision applies to Coast Guard pilotsonly when they are operating below

the minimum safe altitudes estab-lished by the FARs. When flying at orabove the mandated minimum alti-tude, as CG 6506 was, this provisionis not triggered.

Third, the court determined thatthe manual provision could not estab-lish liability because the FTCAprovides that the United States “shallbe liable . . . in the same manner andto the same extent as a private indi-vidual under like circumstances. 28U.S.C. § 2674. Private helicopterpilots are not required to follow a mil-itary manual, and therefore thisprovision could not establish thestandard of care of the Government’spilots in a tort suit.

Finally, unlike the federal minimumsafe altitude regulation, which actual-ly sets forth discernable standards ofcare, such as 500 feet AGL, theCoast Guard manual provision hasno discernable standard. Plaintiffscontended that this provision con-tained an implicit standard that is vio-lated whenever persons or propertyon the ground are injured by a CoastGuard helicopter. The court swiftlyrejected this argument, reasoningthat if Plaintiffs were correct, the pro-vision would subject the UnitedStates to strict liability rather than lia-bility in negligence. This would not bean acceptable result because theSupreme Court has held that theGovernment cannot be held strictlyliable for torts under the FTCA. Lairdv. Nelms, 406 U.S. 797, 797-99(1972) (Air Force not liable for proper-ty damage from sonic booms causedby military overflights because theFTCA “precludes the imposition ofliability if there has been no negli-gence or other form of misfeasanceor nonfeasance”). The court alsonoted that under Michigan’s EquineLiability Act, a person cannot be heldstrictly liable for the injury of anyoneriding a horse, when the injury stemsfrom an “inherent risk of equine activ-ity,” such as a horse’s unpredictableand unfavorable reaction to noise.See Mich. Stat. Ann. §§ 691.1661-667 (Michie 2000). As a result ofPlaintiffs’ inability to prove an actualbreach of duty, the claims of both Mr.and Mrs. Mikalich failed.

Last WordsAs illustrated by Mikalich v. United

States, No. 05-72276 (E.D. Mich.,

April 5, 2007), Congress has not pro-vided a remedy for every governmen-tal activity that leads to an injury.Recovery is only available under theFTCA for negligence, requiring proofthat a breach of duty applicable to aprivate person performing the sameactivity proximately caused an injury.Although it is beyond doubt that theoverflying HH-65A actually frightenedMrs. Mikalich’s horse, causing it tothrow her out of her saddle and ontothe ground, the Government won thecase because the pilot nonethelessoverflew RHS at an altitude of atleast 500 feet AGL, as required bythe applicable regulation. Like avia-tion, horseback riding, it seems, isnot an activity free of inherent risk toits participants.


permanent physical invasion of thatairspace.

McCarran and Clark County askedthe U.S. Supreme Court to review thedecision. They said the state highcourt incorrectly resolved whetherfederal law bars recognition of state-law-based ownership of navigableairspace the landowner has not previ-ously used.

The ordinances simply regulate theuse of land by setting height restric-tions that, if exceeded, trigger aFederal Aviation Administration analy-sis to determine whether the structureat issue would pose a hazard, theysaid.

Sisolak argued in response that theNevada high court relied on the stateconstitution to conclude that anunconstitutional taking of privateproperty had occurred. Federal lawdoes not remove state law restrictionson the exercise of zoning power, nordoes it defeat any right to compensa-tion under state law, he argued.

Sisolak claimed the U.S. SupremeCourt therefore lacked jurisdictionover the issue about a federal consti-tutional taking because the statecourt rested its judgment on indepen-dent and adequate state law grounds.The Supreme Court refused to hearthe case on February 20, 2007.

RECENT DEVELOPMENTS(Continued from page 20)


Motivation for the Trip The Sun ‘n Fun Fly-In and Air Show

is one of the premier aviation eventsin America attracting exotic, classic,warbird, and active duty military air-craft from the eastern United Statesand Canada. The expansive airfield atLakeland, Florida is a great location toshowcase premier aircraft and thepilots who fly them. I had flown to Sun‘n Fun a few years ago. However, inrecent years, the demands of my lawpractice took priority over a visit tothis fascinating air show. Friends andfamily members encouraged me totake a break this year and pay a visitto Lakeland.

In between preparing for anupcoming mediation and taking callsat the office, I jumped on the Internetand downloaded the Sun ’n FunNOTAM, including arrival and depar-ture procedures — a mere 36 pages.It took me about one hour to digestthe material. Then, I had to work up aflight plan, get an IFR arrival reserva-tion, get a briefing and file my flightplan. I got a reservation for an arrivalat 12:00 noon on April 20, and rea-soned that with the potential for adelay of up to thirty minutes, if Ideparted at 9:00 a.m., the two and ahalf hour flight would put me in myarrival window. A call to “Missy” atColumbia Air Center revealed that ahotel room could be obtained at theImperial Swan Hotel. So, the stagewas set for my trek to Sun ‘n Fun.

Awakening at 6:00 a.m., I grabbeda bowl of cereal, called Flight Service

for an updated weather briefing andgot a few clothes together. Therewere IFR conditions in southwestGeorgia and Northern Florida thatwere supposed to burn off by noon.With a short drive to the airport and abrief preflight, I was airborne shortlyafter 9:00 a.m. Flying over a solidundercast until reaching Crystal River,the flight was uneventful. The ATCpersonnel did a good job of mar-shalling the traffic on the arrival.Turning final, I was perhaps one-halfmile behind a highwinged Cessna infront of me. We essentially “air taxied”half the length of Runway 27 Right,touching down about 4,000 feet downthe 8,000 feet “runway.” In ordinarytimes, Runway 27 Right” is a taxiway.After landing and clearing the active,the taxi to parking was a virtualodyssey as I was first directed toparking for camping and later for tiedown in the grass adjacent to taxiwayEcho on the southeast side of the air-port.

After shutdown, I was promptlymet by Chris of Columbia Air Centerwho serviced the Bonanza with 34gallons of fuel. Chris helped me screwthe spiral stakes into the ground tosecure my tie down ropes and helpedme place the canopy cover on theBonanza. Before I knew it, the shuttlecar had arrived and I was on my wayto Columbia Air Service to get a rentalcar. My good friend, Chris Rounds,had a wrist band waiting for me thatwould give me access to the flightlineand exhibits.

The Flightline and Exhibits A drive around the perimeter of the

airfield let me to a gravel parking areaabout a half mile from an entrancegate. If you don’t like walking, youwon’t like Sun ‘n Fun, since the flight-line and exhibits occupy many acres.In fairness, people were being shut-tled about in trams that were pulledby John Deere tractors. People whodid not care to walk could be seenshuttling about the flightline andexhibits aboard electric scooters thatwere apparently available for rental.

The Aircraft After paying a visit to the Flight

Service Station on the field and filingmy departure flight plan, I wanderedoutside to see simulated bombingruns and pyrotechnics, not unlike thekind of flying I do in the replicaNakajima Kata bomber. As the bomb-ing attacks were underway,formations of North American AT-6/SNT Texans flew overhead. In time,the Second World War era P-51Mustangs, Spitfires and similar air-craft gave way to an O-2 Skymasterand a T-28 Trojan as representativesto the Vietnam War. They, in turn,were followed by jet aircraft such asthe red T-33 flown by Chris Rounds.

As I wandered about the flightline,a Curtiss P-40 Warhawk caught myeye. It was painted in a camouflagepattern reminiscent of the AmericanVolunteer Group and had the Walt

FLIGHTWATCHAlan Armstrong


Disney leaping tiger or Flying Tigeremblem behind and below the cock-pit. It, of course, featured the tigershark teeth and eyes on the nose.However, rather than displaying theChinese Air Force twelve pointed starin a blue disk, it bore Americaninsignia. It could be theorized todepict an AVG/Flying Tiger P-40taken over the China Air Task Force inthe summer of 1942 when the AVGwas officially disbanded. In time, theP-40 would fly in the air show with anactive duty Air Force A-10Thunderbolt (a/k/a “Warthog”) as partof the United States Air Force“Heritage Flight.”

There were acres and acres of war-birds, classic jets, military aircraft andantique - classic airplanes. A particu-larly attractive Lockheed Model 10Electra like the one flown by AmeliaEarhart on her attempted around-the-world flight caught my eye. Theunpainted aluminum skin was sohighly polished, it looked like a mirror.

Interesting PeopleIn time, I got to say hello to Chris

Rounds and spend time with his par-ents and friends at his motor home.Among his friends was Carols Gann,a superb aircraft engine builder inLafayette, Georgia. Gann flies aBonanza powered by a powerfulLycoming engine that reportedly hasa true airspeed at altitude of 200knots. This performance comes at acost, since it burns about 24 gallonsper hour while a stock Bonanza with aContinental IO-520 burns about 14gallons per hour at about 160 knots.

cessful career as a motion picturepilot. Corkey flew in one or more ofthe James Bond movies and, accord-ing to my understanding, wrote themotion picture pilot operating proce-dures.

Lynne Birmingham is a good friendwho represents the interests ofTecnam Aircraft, an aircraft of Italiandesign. I spent some time with her tolearn about her plans for growing hercompany. It was then time to drop bythe gift shop and purchase someitems to take home to my wife anddaughter.

The Trip HomeAfter having breakfast Saturday

morning, I drove to Columbia Aviationto return my rental car. Standing infront of me was Martha King who,together with her husband, Steve, is aremarkable aviation educator andentrepreneur. She declared she wasdeparting in her jet aircraft, perhapsfor her home in California.

A U.S. Navy T-38/F-5 in a light graypaint scheme with a red sunburst onthe vertical fin was an interestinglooking airplane. This unusual paintscheme was complete with a tigershark mouth on the nose, replicatingthe tiger shark emblem displayed onthe P-40. Shark mouths on airplanesare still very popular.

For years I have corresponded withCorky Fornoff. I got to meet Corkywho is the demonstration pilot for theLoPresti Fury, a high performance,low wing monoplane developed fromthe Globe Swift. I also met CurtLoPresti, the CEO of the LoPrestiFury. Curt is an aeronautical engineer,and his father, Roy LoPresti, was avery accomplished aircraft designerat Grumman, Beechcraft, Mooneyand Piper.

I got to spend time with TomNorton, the editor of Southern Aviatorwho reviewed my book, PreemptiveStrike — The Secret Plan That WouldHave Prevented The Attack On PearlHarbor. Tom has encouraged me topersevere with that project as hasCorkey Fornoff who had a very suc-

The courtesy van dropped me offnear my Bonanza which was sitting ina grassy field that was nearly emptywhen I arrived. After a pre-flight andengine start, the departure informa-tion declared IFR aircraft shoulddepart VFR and remain clear of theTampa Class B Airspace. I altered myGPS flight plan to fly northwest onVictor 157 to the HYZER Intersection,since I planned to climb to 6,500 feet.If I had proceeded on my originalcourse, a 6500 foot altitude wouldhave put me inside Tampa’s Class BAirspace.

I followed the conga line to thedeparture intersection and was even-tually directed to the departureintersection of Runway 9 Right with aCessna lined up on my right wing.The flagman gave the Cessna a signalto depart and seconds later I receivedthe same signal. As I climbed out on


an easterly heading, I was overtakingthe Cessna and a Grumman in front ofthe Cessna, so I kept my altitudelower than theirs to keep them in sightand ensure my own separation. Atthis point, my formation training andexperience came in handy.

Finding a hole in the clouds, Iclimbed up to 6,500 feet and put acall into Tampa Approach. The nextthing I knew, I had my IFR clearanceto PDK and turned northwest to inter-cept Victor 7 and fly to my first checkpoint, Cross City (CTY). For some rea-son, Tampa had me descend to 4,000feet that put me in and out of theclouds until I passed the Florida-Georgia border. There was oneadvantage to flying at that low alti-tude: I could admire the swamp andcoastal waters of the Florida panhan-dle through breaks in the clouds. Iconsidered grabbing my camera andtaking a picture, but turbulence wouldnot permit me to do so.

As I approached Valdosta, I wasflying in clouds of smoke from a rag-ing forest fire below and gave a pilotreport (PIREP) to Valdosta Approach.

By the time I reached Vienna (VNA),the weather was clear with light tur-bulence. Eventually, I was cleared tothe TUCKR (sic) Intersection and thendirectly to PDK. I flew over Covington,

where my daughter attends OxfordCollege of Emory University and thenflew near Stone Mountain. Thedescent and landing at PDK wasuneventful and I was glad to have

been afforded the opportunity to visitone of the world’s premier aviationevents.

Alan Armstrong is engaged in thegeneral practice of law with anemphasis in the following areas:Aviation Matters, Personal Injury,Professional Negligence (Malpractice),Products Liability.

Phone: (770) 451-0313.Fax: (770) 451-0317.Email: [email protected] 2007. Alan Armstrong.All rights reserved.

The plaintiff was an AfricanAmerican and was also over-weight. She bought a SouthwestAirlines ticket and was allowed toboard the aircraft. Once in herseat, she was approached by aSouthwest employee who re-quested that she purchase asecond ticket. The employee,allegedly, did not explain to thepassenger that the request wasdue to a Southwest policy requir-ing that customer of size (i.e.,who cannot put their armrest fullydown) buy a second ticket.

The passenger declined topurchase a second ticket and leftthe aircraft. She then suedSouthwest Airlines under 42U.S.C. §1981, and the airlinebrought a motion for summaryjudgment. The trial court deter-mined that (1) the plaintiff was themember of a protected class, (2)to attempt to make or enforce acontract for services the defen-dant ordinarily provided, and (3)was denied the benefits of thecontract when similarly situatedpersons outside the protectedclass were not, or that the pas-

sengers received services in a“markedly hostile manner.”

The trial court found that thepassenger had a standard of aprima facie case of discriminationin that she is a member of a pro-tected class who attempted toenforce a contractual relationshipand the benefits were denied her.Although the pleadings did notspecifically allege that similarlysituated persons outside theclass were treated differently, thetrial court found that there was asufficient number of disturbingfactors suggesting hostilitydirected toward the passenger inthe encounter. Also, it appearedthat the passenger was not solarge that the armrest could beplaced in the fully down position.The trial court reasoned that theplaintiff had met her burden andthe allegations contained in herpleadings and denied the motionfor summary judgment.

Thompson v. SouthwestAirlines Co., Case No. -4-CV-00313, 2006 WL 287850 (D.N.H.February 6, 2006).

Submitted by Alan Armstrong.

AIRLINE COULD BE SUEDFOR RACIAL DISCRIMINATION

WHERE PASSENGER WAS REQUESTEDTO PURCHASE A SECOND TICKET

This year marks the fortieth an-niversary of the National Trans-portation Safety Board (NTSB), andconstitutes my second year as theSafety Board’s General Counsel.After more than a year with the orga-nization, I can attest to the pleasure Ihave being a member of this wonder-ful NTSB staff. The people of theNTSB take great pride in fulfillingtheir duties, as they work tirelessly toprevent deaths and injuries by mak-ing United States transportation sys-tems safer for all.

The National Transportation SafetyBoard: Dedicated to ExcellenceAs most of you know, the NTSB

opened its doors on April 1, 1967.Although Congress deemed theNTSB independent when it createdthe NTSB, the agency relied on theU.S. Department of Transportation(DOT) for funding and administrativesupport. In 1975, under the Indepen-dent Safety Board Act, Congresssevered all organizational ties to DOTto ensure an unbiased, completelyimpartial investigation of accidents,including those in which a regulatoryagency within DOT provided over-sight of the transportation modeinvolved in an accident. Today, theNTSB is not part of DOT and is notaffiliated with any of its modal organi-zations. Such independence instillsadditional confidence in the findingsof the NTSB, in the eyes of the public,the transportation industry, andCongress.

Since its inception in 1967, theNTSB has investigated approximately130,000 aviation accidents and over11,000 surface transportation acci-dents. In so doing, it has become oneof the world’s premier accident inves-tigation agencies. On call 24 hours a

day, 365 days a year, NTSB investiga-tors travel throughout the country andthe far reaches of the globe to inves-tigate significant accidents anddevelop factual records to supportthe recommendations it makes forsafety improvements to the trans-portation system. Industry operators,regulatory agencies, and other enti-ties such as States, municipalities,and manufacturers have adoptedover 82 percent of NTSB safety rec-ommendations. Many safety featurescurrently incorporated into airplanes,automobiles, trains, pipelines andmarine vessels had their genesis in anNTSB recommendation.

The Safety Board’s Office ofGeneral Counsel

I am delighted to address theLawyer Pilots Bar Association for thefirst time since joining the NTSB. AsGeneral Counsel of the agency, Ioversee the office that is responsiblefor aiding investigators in obtainingthe information they need to com-plete their investigations, providingadvice regarding information that theNTSB supplies to the public, assist-ing Board Members regarding casesin which the Federal AviationAdministration (FAA) or United StatesCoast Guard is pursuing certificate orlicensure actions against certificate-and license-holders, defending theagency in lawsuits, and a variety ofother responsibilities. As you know,my office regularly interacts withmany of you, in your capacities asrepresentatives of party participantsto investigations, parties to hearings,and others, such as victims of atransportation accident or their sur-viving family members. Given yourrepresentative roles and the respon-sibilities of my office, I wish to pro-

vide you with information that maybenefit you in your interactions withthe Safety Board.

Obtaining Accident Investigation Information

The Safety Board’s Office ofGeneral Counsel handles numerousrequests for deposition testimony ofNTSB investigators and employees.The NTSB understands your desireto obtain such testimony, as you rep-resent litigants in civil actions relatedto aircraft accidents. The NTSB,however, cannot routinely makeNTSB investigators available for suchdepositions without a strong factualshowing of a need for their testimony.As you may know, Congress hasdirected the NTSB to avoid unneces-sarily diverting its resources from thecore investigative mission of theagency. If the NTSB liberally grantedrequests for deposition testimony orinformational interviews, such occur-rences would divert a large percent-age of NTSB employees’ time fromtheir work—the NTSB is a smallagency that cannot function in theabsence of committed employeeswith adequate time to fulfill theirduties. In addition, allowing NTSBinvestigators to supply expert opin-ions or analyses to litigants wouldimpugn investigators’ credibility,independence, and effectiveness. Ingeneral, deposition testimony by ourinvestigators is not deemed neces-sary when the only information aboutwhich an attorney will inquire is con-tained in a factual report, as definedby NTSB regulations; therefore, liti-gants should be mindful of therequirements of 49 C.F.R. part 835, inrequesting the deposition testimonyof an NTSB employee, and in partici-pating in depositions.

THE ENFORCEMENT DOCKETGary Halbert

Many of us have had the pleasure of meeting the NTSB’s General Counsel, Gary Halbert, who joined theBoard in 2005 as the next step in a career which has included distinguished accomplishments as both militaryaviator and lawyer. In his first article here, GC Halbert reviews the basics of the Board, its functions and thoseof its General Counsel, and includes some practice tips to keep in mind. I know you join Your Editor in wel-coming Gary to the pages of the Journal.


In addition, counsel in all types ofcivil litigation actions involving a trans-portation accident that the NTSB hasinvestigated frequently seek as muchinformation as they can possiblyobtain from the NTSB. In this regard,the NTSB opens a “public docket” ofinformation from each investigation,and provides at least one factualreport regarding each investigation.Counsel should search for the factualreport regarding the accident withwhich they are concerned in theSafety Board’s Aviation AccidentDatabase, available on the SafetyBoard’s website at www.ntsb.gov.Counsel should also obtain the publicdocket of information from the SafetyBoard’s record-keeping facility,General Microfilm, Inc. (GMI). If theaccident investigation from whichcounsel seeks information is ongoing,then counsel should contact GMI andask GMI to send them the publicdocket of information once the NTSBhas released the public docket. Inaddition, the Safety Board’s publicwebsite contains other resources thatcounsel can use to obtain informationin a timely manner, such as e-mailsubscription services both for pressreleases on specific modes of trans-portation, and for safety recommenda-tions. Unfortunately, attorneysinvolved in cases regarding a particu-lar investigation often submit broadFreedom of Information Act (FOIA)requests for such information. As theSafety Board’s public web pageregarding the NTSB FOIA programexplains, submitting such requests arerarely helpful in obtaining useful infor-mation from a particular investigation.

In conclusion, the Safety Board’sOffice of General Counsel encour-ages all litigants and attorneys whoseek information regarding a specificinvestigation, either through requestsfor deposition testimony or requestsfor records, to familiarize themselveswith the Safety Board’s regulatoryprovisions regarding such requests,and remain mindful of the variousoptions for obtaining information froma specific investigation.

Pursuing Appeals of Regulatory Enforcement Actions

In addition, as you know, the NTSBissues decisions on the first two lev-els of appeal for certificate- andlicense-holders in challenging revoca-

tion and suspension actions that theFAA and Coast Guard bring againstairmen, mechanics, operators, andmariners. In particular, the SafetyBoard’s Administrative Law Judgesprovide initial decisions on thesecases, and the Office of GeneralCounsel becomes involved when aparty appeals a law judge’s decisionto the full Board. In this capacity, myoffice serves as the equivalent of lawclerks to an appellate court.

The NTSB observes specific rulesof practice regarding all regulatoryenforcement cases, located at 49C.F.R. parts 821, 825, and 826.Parties’ failure to observe many ofthose rules, particularly regarding fil-ing deadlines, can result in dismissalof an appeal. It is therefore incumbentupon practitioners to understandthese rules, and the methods bywhich the Board computes duedates, in their practice before theBoard. Practitioners need to familiar-ize themselves with the Board’sprocedural rules, in the interest ofensuring that a procedural error doesnot result in the dismissal of anappeal.

And finally, let me offer a few briefcomments regarding proof analysis.

Early in my legal career, as I practicedin criminal cases, I learned the impor-tance of proof analysis and proving allelements of an offense in presentingmy cases. Since coming to the Board,I have now seen a case or two wherecounsel before the Board failed toprovide sufficient evidence to estab-lish each element of their argument.Therefore, if you are mentoring abeginning practitioner, I encourageyou to add this to your list of topics,and remain mindful of the necessity ofproviding an evidentiary foundation tosupport your arguments.

ConclusionI hope that counsel will find the tips

provided in this article helpful in rep-resenting their clients in cases inwhich the NTSB has been involved.The Safety Board’s Office of GeneralCounsel understands that each partyhas an interest in the outcome of theirparticular case, and is committed toevaluating every request for informa-tion and each case in aneven-handed, unbiased manner,while remaining compliant with theSafety Board’s regulatory provisions.


LPBA CLE CREDITSRancho Bernardo Inn, San Diego, CA

February 28-March 4, 2007California. . . . . . . . . . . . . . . . . . . . . . . . . Approved (9.0 General; 1.0 Ethics)Colorado. . . . . . . . . . . . . . . . . . . Approved (11.0 Total, including 1.2 Ethics)Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . Approved (8.5 General; 1.0 Ethics)Georgia . . . . . . . . . . . . . . . . . . . . . . . . . . Approved (9.0 General; 1.0 Ethics)Indiana . . . . . . . . . . . . . . . . . . . . . . . . . . Approved (7.1 General; 1.0 Ethics)Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Approved (8.5 Total; 1.0 Ethics)Minnesota . . . . . . . . . . . . . . . . . . . . . . . . Approved (6.0 General; 1.0 Ethics)Missouri . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Approved (8.5 Total; 1.2 Prof.)New Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . Approved (6 Total; 1 Ethics)New York . . . . . . . . . . . . Approved (recipr. with OH; 7.0 General; 1.0 Ethics)North Carolina . . . . . . . . . . . . . . . . . . . . Approved (5.25 Total; incl. 1 Ethics)Ohio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Approved (7.0 Total; incl. 1 Ethics)Oregon . . . . . . . . . . . . . . . . . . . . . . . . . Approved (7.0 Total; incl. 1.0 Ethics)Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Approved (7 Total; 1 Ethics)Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Approved (7 General; 1 Ethics)Washington . . . . . . . . . . . . . . . . . . . . . . Approved (7 General, incl. 1 Ethics)West Virginia . . . . . . . . . . . . . . . . . . Approved (8.0 General; incl. 1.0 Ethics)Wisconsin . . . . . . . . . . . . . . . . . . . . . . . . . . . . Approved (8.5 Total, 1 Ethics)


After the Fall: Regaining the Left Seat

All pilots know that the best way toget out of trouble is not to get into itin the first place. However, practition-ers who get well off the morallocalizer may be given a mandatoryvacation from duty by their licensingauthority.

But both pilots and practitionersmay arrive at the point where they’vedone their time, criminally or adminis-tratively, and seek readmission to thecockpit. Like Marley’s ghost, thosewith a past may find that the chainsformed by their misdeeds clatterbehind them and, in these cases, mayget caught on the frame of the cock-pit door.

Florida Board of Bar Examiners Re:Fred C. McMahan, No. SC06-795(Nov. 22, 2006)

A Florida attorney, McMahan, wasadmitted to the Florida Bar in 1991and in 1997 petitioned for disciplinaryresignation after he pled guilty to twofelony conspiracy counts of moneylaundering and obstruction of justice.He was sentenced to 24 months’imprisonment, later reduced to 17months, and a period of supervisedrelease. After working for severalyears as a paralegal he reapplied foradmission to the Florida Bar in 2002.

The Florida Bar conducted a back-ground investigation as a result, pub-lished Specifications concerning itsfindings — all of which were disquali-fying and all of which McMahanadmitted — and held a hearing. Atthe hearing, McMahan presented thetestimony of three witnesses con-

cerning his rehabilitation, and theBoard of Bar Examiners concludedthat he had demonstrated by clearand convincing evidence that he wasrehabilitated. The Board recommend-ed his reinstatement.

Upon review, the Florida SupremeCourt took a decidedly frostier viewof the matter, stating it “strongly dis-agree(d)” with the Board’s recom-mendation. First, it noted thatMcMahan’s “extremely serious illegalconduct” extended over a “lengthyperiod of time.” It was undisputed onthe administrative record that he hadwillingly assisted his brother, whodirected a vast multi-state drug culti-vation and distribution network, in awide variety of ways from the 1980’sinto the 1990’s, when he was finallyindicted. “In short,” the Courtobserved, “McMahan was an illegaldrug dealer.” McMahan cultivatedand harvested marijuana on aKentucky farm; purchased anotherfarm in his own name with his broth-er’s drug proceeds; accepted sup-port money from his brother while hewas attending law school; and assist-ed others in asserting fraudulentclaims of ownership in properties for-feited to the government. Further-more, McMahan continued (andconcealed) these activities whenapplying for and while attending lawschool. He stayed in the family busi-ness after becoming a lawyer andeven while working in the criminaljustice system as a public defender.

The Court noted its own pro-nouncements in previous cases to theeffect that attorneys with drug-traf-

ficking infractions have committedacts with serious and debilitatingsocial and criminal consequenceswhich consume extraordinary legaland judicial resources. Citing FloridaBar v. Hecker, 475 So.2d 1240, 1243(Fla. 1985), the Court stated it “cannotemphasize enough that Bar membersor applicants who participate in suchactivities will and must be account-able and dealt with severely.”

Additionally, the Court noted thatthe conspiracy counts to whichMcMahan had pled were rooted in“intentional and dishonest acts thatundermine our system of justice.” Noqualification for membership in theBar is more important than “truthful-ness and candor,” the Courtemphasized (Slip Op. at 7).

In light of this, the Court exercisedits right to conduct its own indepen-dent review of the record developedat the proceedings below to deter-mine the underpinnings of the Board’srecommendation. Given the serious-ness of the undisputed activities inwhich he had engaged over so long aperiod, the Court was looking forwhat it termed “an extraordinaryshowing of evidence of rehabilitation”(Slip Op. at 7).

Three witnesses had testified onMcMahan’s behalf. One was an attor-ney in the state prosecutor’s officewho had worked on the other side ofcases against McMahan for eight toten months in the early 1990’s. Hetestified he found him to be a “dedi-cated” lawyer who had probably beenmisled into criminality by an over-bearing family and who now

ETHICS:CIRCUMNAVIGATING THE BUILDUPS

Gary W. Allen

This series of articles is built around the premise that an attorney facing ethical issues in the practice oflaw is something like a pilot encountering the risks and perils of the air in the course of a flight; each must useskills of perception, evaluation, and avoidance in order to complete the planned mission safely and without harmto self or others. Some hazards are easily detected; like towering cumulonimbus clouds, they can be seen formiles and the risks of tangling with them are obvious. Others are more subtle and may lie at considerable dis-tance from those which are more apparent. Most pilots find the study of accidents and incidents helpful inshaping and refining their hazard detection skills. Gleaning lessons from the mistakes and misfortunes of oth-ers can be both interesting and instructive and lead to a greater chance of safely-completed missions.


recognized the need to acceptresponsibility for his actions. TheCourt found little concrete evidence inthis testimony of the extraordinaryrehabilitation it required.

Next was the testimony of a lawyerwho gave general testimony aboutthe quality of McMahan’s legal workand stated that he “is trying to moveon with his life,” more focused anddedicated than he was before hislegal forced landing. The lawyer foundMcMahan to be “honest and trust-worthy” and forthright about hisprevious mistakes. But, the Courtobserved, there was no specific evi-dence of McMahan’s rehabilitation.

Another attorney who had knownMcMahan for 11 years testified thatMcMahan had worked for him as aparalegal for the past two years; hefound McMahan to be an excellentparalegal who followed the rules andwho he would hire as an attorneyupon his reinstatement to the Bar. Henoted that McMahan had taken anumber of professional courses, vol-unteered time with the Teen Courtand taught reading skills to the under-privileged.

McMahan himself testified that hehad devoted over 700 hours of volun-teer time to the Teen Court, theVolusia County Literacy Society, anddonating blood. Also, he noted thathe had worked two jobs for severalyears to meet his financial obliga-tions.

While finding these activities com-mendable, the Supreme Court foundthat:

Most of the evidenceMcMahan submitted asproof of rehabilitationrelates to activities thatare expected generallyfrom any typically re-sponsible citizen. Forexample, countlesspeople maintain theirfinancial affairs by hold-ing more than one job.To suggest that this sta-tus is important andconstitutes rehabilita-tion is misdirected.Numerous responsiblecitizens donate blood.People are expected toconduct themselves inan honest and trustwor-thy manner and to

accept responsibility fortheir past misdeeds.Further, it is not a sign of rehabilitation thatMcMahan complied withthe requirements of theRules Regulating theFlorida Bar regardingdisbarred attorneys whowork as paralegals. Hehad no choice andwould have been in fur-ther violation had he notcomplied with the rules.

Slip op. At 7 - 8. The Court was also unimpressed

with McMahan’s voluntary activities,noting that when his 700 hours weredivided out over the term of his dis-barment, “he has volunteered lessthan two hours per week . . . again farless than a convincing demonstra-tion” Furthermore, “compared to hislengthy criminal activities involvingthe distribution of illegal drugs, hefalls far short of showing that he hasbeen rehabilitated” (Slip Op.at 8 - 9).

The Court thus found thatMcMahan had failed to demonstraterehabilitation with evidence sufficientto overcome the lengthy period of hisserious criminality. The Court disap-proved the Board’s recommendationof reinstatement and stated that hecould reapply for admission two yearshence.

If this airman found the certifyingagency to be in an unaccommodatingmood, another had a different experi-ence with his. While thecircumstances were clearly different,so was the applicant – a former stategovernor and U.S. Congressman.

In the Matter of the Discipline ofWilliam J. Janklow, No. 2374, 2006SD 3 (Jan. 3, 2006)

William J. Janklow, former AttorneyGeneral and Governor of SouthDakota and then its Congressman,barreled through a rural stop sign athigh speed in his Cadillac and killed amotorcyclist unfortunate enough tobe in his path. This was the mostegregious of a long string of motorvehicle violations committed byJanklow which were introduced at histrial, where he was convicted of sec-ond-degree manslaughter andsentenced to jail time. See 693 NW2d685 (SD 2005). Following its owninvestigation and hearing, theDisciplinary Board recommended that

Janklow be suspended from the prac-tice of law for a total of 26 months,commencing in December 2003 andending with reinstatement in February2006, subject to various conditionsincluding exemplary vehicular behav-ior.

The Supreme Court of SouthDakota considered the matter andnoted that while many states havemade a felony conviction grounds foran automatic disbarment, SouthDakota has not (citing Discipline ofOrtner, 699 NW2d 865, 877 (SD 2005)and cases cited therein). Key to thedetermination of an appropriate sanc-tion in the state were two factors: 1)the protection of the public from fur-ther fraudulent, unethical orincompetent activities involving thisattorney; and 2) the preservation ofthe image and integrity of the attor-neys, the bar association and thelegal profession as a whole” (citingDiscipline of Simpson, 467 NW2d921, 921-22 (SD 1991)).

Concerning the first element, theCourt noted Janklow’s crime was oneof recklessness, a lower level of cul-pability than intentional acts, and didnot involve moral turpitude or the dis-honesty, fraud or deceit associatedwith harm to the general public. Norwas Janklow impaired by drugs oralcohol at the time of the offense.Further, the Court observed,

Janklow’s felony con-viction is unrelated tothe practice of law.While there are publicconcerns regarding Jank-low’s driving, there wasno evidence presentedto suggest that the pub-lic needs protectionfrom Janklow’s conductas an attorney. . . Thereis no evidence to sug-gest that he would be athreat to his clients or tothe public if allowed toreturn to the practice oflaw.

Slip Op. At 7. Turning to the second element

regarding upholding the preservationof the image and integrity of the attor-neys, the Court acknowledged thatJanklow’s action had resulted in thedeath of an innocent person and had

(Continued on Page 38)


YOUR EMPLOYEE HASJUST POSTED DEROGATORYCOMMENTS ABOUT WORK-ING AT YOUR COMPANY ONHER PERSONAL WEBSITE.WHAT CAN YOU DO? WHATLIMITATIONS EXIST TO DIS-CIPLINE EMPLOYEES FOROFF-DUTY CONDUCT?

What is a “blog?”A blog, or weblog, is a regularly

updated journal published on theInternet which provides the writerwith a forum to express and sharethoughts or comments on any num-ber of issues.1 There are presently79.2 million blogs on the web.2 Manyblogs are interactive, and invite visi-tors to post responsive comments, orlink to related websites, blogs or pho-tographs. Blogs allow the author topublish virtually anything, e.g., poli-tics, gripes, gossip, trivia, etc., andmany bloggers choose to remainanonymous, and adopt a blog name.

Blogging by employees is on therise. Blog content often containswork-related issues such as compen-sation, annoying co-workers anddemanding bosses. Due to the inter-active and often anonymous nature ofa blog, bloggers will express unsa-vory opinions, and post entriesembarrassing to the employer or toco-workers, and sometimes publicize

confidential information which mayexpose the employer to legal liability.In fact, while many work-related blogsare authored anonymously, often theblogger will intentionally name his orher employer, or reveal enough infor-mation that a savvy co-worker orhuman resources department or eventhe general public can discern theblogger’s true identity or the identityof the employer.

Although bloggers often write onnon-work time using their own com-puters, some employers arenevertheless taking disciplinaryaction for undesirable blog contentthat embarrasses, disparages, andexposes them. An employer’s abilityto reach into its employees’ privatelives and take action as a result oftheir off-duty conduct may presentsnew challenges for employers.3

Notorious BloggersPerhaps the most famous of blog-

gers terminated by her employer isHeather Armstrong. Armstrong createda blogging website called dooce.com,where she blogged about her per-sonal life, relationships and heremployment as a web designer.4 InFebruary 2002, Armstrong’s employ-ment was terminated because ofcomments she wrote about heremployer and her co-workers. As aresult, the word “dooce” has been

coined to describe an individual whowas terminated by an employerbecause of blogging.5

Similarly, newspaper writer RachelMosteller blogged under the penname “Sarcastic Journalist” to main-tain anonymity for herself, heremployer and her co-workers. In oneblog she wrote:6

I really hate my place ofemployment. Seriously.Okay, first off. They havethese stupid little awardsthat are supposed toboost company morale.So you go and do some-thing “spectacular” (mostlikely, you’re doing yourJOB) and then someonesays “Why golly, that wasspectacular.” then theysign your name on somepaper, they bring youchocolate and some bal-loons. Okay two peoplein the newsroom just gotit. FOR DOING THEIRJOB.7

Even though Mosteller did not identi-fy her employer by name or location,her identity became known by heremployer, and she was terminated theday after her posting.

Another well-known example of anemployee who faced consequences

WHEN AN EMPLOYEE’S OFF-DUTYCONDUCT IMPACTS THE WORKPLACE . . .

Kenneth D. Stein, Elana Gilaad, and Yoon Kim

Kenneth D. Stein is the managing partner of the New York City office of Ford & Harrison LLP which rep-resents management in all aspects of labor relations, fair employment practices, benefits and immigration law.

Mr. Stein received his J.D. degree from the University of Michigan Law School, and served with the NLRBfor two years. He is past chair of the Committee on Labor Arbitration and Collective Bargaining of the New YorkState Bar Association’s Labor and Employment Law Section, as well as a member of the Committee onProfessional Responsibility of the New York City Bar Association, and the Equal Employment OpportunityCommittee and the Development of the Law Under the NLRA Committee of the American Bar Association’sLabor and Employment Law Section.

Elana Gilaad, an associate in the New York office of Ford & Harrison LLP, represents management in allphases of federal and state (New York and New Jersey) labor and employment law.

Yoon Kim, an associate in the Atlanta office of Ford & Harrison LLP, focuses her practice on employmentlitigation representing management.


for postings on a personal blog isMichael Hanscom. Hanscom workedas a Xerox temporary employee andwas assigned to the Microsoft head-quarters offices. Hanscom posted aphotograph on his personal blog of ashipment of Apple computers (a soft-ware rival) being delivered toMicrosoft, which Microsoft foundoffensive, and as a result, Hanscomwas reassigned from his post atMicrosoft.8

Why Do Companies Regulate Off-Duty Conduct?

Companies have an interest in reg-ulating the off-duty conduct of theiremployees because the effects of offduty conduct may sometimes spillinto the workplace. For example,employees may post information ontheir blog which can purposefully orinadvertently expose the company toliability by disclosing confidential andproprietary information or tradesecrets; defaming the company orfellow employees; violating the com-pany’s anti-harassment or otheremployment policies by making inap-propriate comments about co-work-ers, or generally portraying thecompany’s image in a negative publiclight. Particularly where blog author-ship is anonymous, a blogger may beinclined to post messages with afalse sense of security that there willbe no consequences for the posting.For example, one caller soughtadvice from Washington Post colum-nist Amy Joyce with this problem:9

Although my very largecompany has a policythat says employeesmust get approval from asupervisor if they’regoing to maintain a blog,one of my co-workersspends a good portion ofthe day working on hisanonymous blog that thebosses don’t knowabout. No big deal in andof itself, but the blog,which he has sent methe link to, is horriblyoffensive, sexist, andhomophobic on a dailybasis, and it makes meuncomfortable. I don’twant to rat him out, butI’ve mentioned to him

before that I find the blogoffensive and he hasblown me off. I don’treally feel comfortableworking around himknowing this is the stuffhe writes, and neither doa couple of othercoworkers. Anything wecan do, or should we justget over it?

Here, the blogger’s statements areakin to those of the harasser whomakes inappropriate comments in theworkplace, and courts have begun torecognize that the workplace mayextend beyond the physical workarea, and into cyberspace.10 The com-pany would have an obligation todiscipline the employee who createsa hostile work environment via theInternet in the same manner as itwould discipline an employee whoharasses in the conventional work-place.

Companies, however, are not limit-ing disciplinary action to suchsituations that are a clear violation ofcompany policy. In fact, companiesare taking action against employeeswho maintain blogs with content thattheir employers deem to be eitherembarrassing or inappropriate. The“Sarcastic Journalist” allegedly wasterminated after she griped aboutpetty office rituals, even though heremployer was never named in thepostings. Similarly, Microsoft allegedlyrequested the reassignment ofMichael Hanscom after photographsappeared on Hanscom’s blog whichmay have reflected the company in anegative light. Perhaps companiesfear unsanctioned information aboutthem being published on the web. Or perhaps companies believe thattaking a tough line against eveninnocuous postings will discouragemore troublesome postings. What-ever the motivation, the current stateof the law recognizes the employer’sability to take disciplinary action foremployee blog content.

Some employers have opted totake a different approach concerningemployee blogging, and have devel-oped policies to encourage employeeblogging on the company’s own web-site. For example, Sun Microsystemshas a web-page dedicated solely toemployee-authored blogs, and devel-

oped a comprehensive policy to mon-itor blog content and format.11 EvenSun Microsystem’s CEO andPresident, Jonathan Schwartz, is ablogger on his corporate website, andhas expressed his view that corporateblogging provides a “competitiveadvantage.”12 Google Inc., Yahoo, andMicrosoft have also establishedemployee blogging policies. Clearly,where blogs are employer-hosted,and governed by specific policies, itis much easier for a company tomonitor blog content, and take disci-plinary action against an employeewho engages in practices that are inviolation of the blogging policy.

Protection for EmployeesCommon Law Claims

As “dooced” blogger Armstrongcautions “BE YE NOT SO STUPID”and to “[n]ever write about work onthe Internet unless your boss knowsand sanctions the fact that YOU AREWRITING ABOUT WORK ON THEINTERNET.13” Employees should heedArmstrong’s advice because the at-will nature of most employmentrelationships permits employers to“discharge or retain employees at-willfor good cause or for no cause, or foreven bad cause without therebybeing guilty of an unlawful act.”14

Limited exceptions to the at-willdoctrine have been carved out, prin-cipally, breach of express or impliedcontract and wrongful discharge inviolation of public policy. Theseexceptions provide some protectionfor employees discharged for off-dutyactivities involving the expression ofpolitical views, personal relationships,and other non-work related behavior,and may also protect blogging byemployees, in some circumstances.

A cause of action for breach of anexpress or implied contract ofemployment is based upon written ororal statements, often in an employ-ment agreement or handbook, thatarguably promise continued employ-ment, or provide specific and limitedreasons for which an employer canterminate employment.15 In thesecases, the courts will have to deter-mine whether the nature of theoff-duty conduct, such as the contentof the blog, provides a basis for theemployer to terminate the employ-ment relationship. Additionally, some

employers enact a “Code of Conduct”for employees, which may provide anadditional basis for terminating anemployee’s employment for off-dutyconduct.

A terminated blogger may also beable to assert a claim for wrongful ter-mination where s/he can prove thetermination contravened a well-established public policy.16 “Tosupport a tort claim of wrongful dis-charge in violation of public policy,the policy in question ‘must be: (1)delineated in either constitutional orstatutory provisions; (2) “public” in thesense that it “inures to the benefit ofthe ‘public’” rather than serving mere-ly the interests of the individual; (3)well established at the time of the dis-charge; and (4) substantial andfundamental.’”17 In short, such a claimfocuses on protecting employeeswho were discharged for conductwhich benefited the public interest,e.g., for refusing to violate law or forwhistleblowing. The PennsylvaniaSupreme Court in Geary v. U.S. SteelCorp. stated:

It may be granted thatthere are areas of anemployee’s life in whichhis employer has nolegitimate interest. Anintrusion into one ofthese areas by virtue ofthe employer’s power ofdischarge might plausiblygive rise to a cause ofaction, particularly wheresome recognized facet ofpublic policy is threat-ened. The notion thatsubstantive due processelevates an employer’sprivilege of hiring anddischarging his employ-ees to an absolute con-stitutional right has longsince been discredited.18

A federal district court inPennsylvania rejected a claim that theplaintiff’s discharge for bringing anon-spouse to a company banquetviolated his freedom of association.19

The plaintiff asserted there was nowritten policy prohibiting extramaritalrelationships and “the conduct ofmany of its top officers and employ-ees fostered an atmosphere ofpermissiveness, allowing its generalagents, officers, life agents, and

employees to engage in open extra-marital relationships with impunity.”20

In rejecting the argument, the courtheld:

Though freedom of asso-ciation is an importantsocial right, and one thatordinarily should not dic-tate employment deci-sions, this Court findsthat the right to ‘associ-ate with’ a non-spouse atan employer’s conventionwithout fear of termina-tion is hardly the kind ofthreat to ‘some recog-nized facet of public poli-cy’ that the PennsylvaniaSupreme Court envi-sioned. . . .21

In Wiegand v. Motiva Enterprises,LLC, a New Jersey federal court alsoexamined the issue of wrongful ter-mination in violation of public policy.22

Wiegand was terminated for sellingneo-Nazi paraphernalia on his web-site even though “the views ex-pressed on [his] website did notinfect the workplace in any way.”23

The court held that the “mandate ofpublic policy” that is necessary tosupport a wrongful termination claimhad to be “clearly identified and firm-ly grounded,” and not “vague, con-troversial, unsettled, [or] otherwiseproblematic.”24 In support of his posi-tion, the plaintiff argued:

[An] employee, whetherpublic or private, ‘shouldnot have to be fearfulabout expressing his per-sonal views in his ownhome, on his own time.He should not have toworry about losing his jobbecause of his exerciseof his first amendmentrights in such a privatemanner that does notaffect his employer.’25

The Court found that Wiegand’sstatements were unprotected com-mercial hate speech, and were notprotected by the United States orNew Jersey Constitution.26 As such,the court held that plaintiff’s wrongfultermination claim failed as a matter oflaw as there was no question that theemployer did not violate a “clear man-date of public policy” when theydetermined that plaintiff’s continued

employment, which required constantinteraction with the public, could notcontinue based on his disseminationof racist music.27 It should also benoted that the Wiegand Court dis-missed plaintiff’s claim for breach ofcontract claim, based upon properlyworded policies in the handbookwhich expressly stated that hisemployment was at-will, and that hewas bound to follow a Code ofConduct.

Although there are presently noreported decisions, it is possible thatunder certain circumstances, a termi-nated blogger also may be ableassert a claim for wrongful termina-tion in violation of public policy.

Statutory ClaimsAlthough there are no reported

decisions with regard to blogging,state and federal anti-retaliation lawshould be considered by employersbefore terminating or disciplining anemployee as a result of blog content.For example, if an employee uses hisor her blog to complain aboutharassment or discrimination in theworkplace, courts may view suchconduct as protected activity underTitle VII (the federal discriminationlaw) or a state discrimination law. Ifthe employee is determined to haveengaged in protected activity, anemployer would violate the discrimi-nation laws if the employee sufferedany adverse actions as a result of theblog posting.

Similarly, employees who use theirblogs to engage in “whistleblowing”activities may also be protected fromadverse employment actions as aresult of their blog content. Section806 of the federal Sarbanes-OxleyAct of 2002, which applies to publiclytraded companies, protects employ-ees in certain circumstances whoreport conduct by the employer thatthe employee reasonably believesconstitutes a violation of §§ 1341,1343, 1344 or 1348, or any rule orregulation of the Securities orExchange Commission, or any provi-sion of federal law relating tocorporate fraud against sharehold-ers.28 Several states, including NewYork, New Jersey and Connecticut,have adopted similar whistleblowerprotection laws for employees of pri-vate employers.29 Although thesevarious state and federal laws have



specific definitions and requirementsfor triggering a “report” or “com-plaint” of unlawful or fraudulentactivities by an employee, it is possi-ble that courts will recognize that blogpostings are sufficient to triggeremployee protection under thesestatutes.

State Legal Activities LawsOver half of the states have enact-

ed laws prohibiting employers fromdisciplining or terminating employeesbecause of the employee’s off-dutyconduct in some respect.30 Althoughthese laws were originally intended toprotect employees from terminationbecause of their off-duty use of lawfulproducts such as tobacco and alco-hol, several states have expanded theconcept of the “off-duty conduct law”to protect employees who engage ina broad array of lawful activities offthe employer’s premises.

For example, the New York legalactivities law provides, inter alia,

[It] shall be unlawful forany employer or employ-ment agency to refuse tohire, employ or license, orto discharge from em-ployment or otherwisediscriminate against anindividual in compensa-tion, promotion or terms,conditions or privileges ofemployment because of:a. an individual’s politi-

cal activities outsideof working hours, offof the employer’spremises and withoutuse of the employer’sequipment or otherproperty, if such activ-ities are legal. . . ;

b. an individual’s legaluse of consumableproducts prior to thebeginning or after theconclusion of the em-ployee’s work hours,and off of the em-ployer’s premises andwithout use of theemployer’s equipmentor other property;

c. an individual’s legalrecreational activitiesoutside work hours,off of the employer’spremises and without

use of the employer’sequipment or otherproperty; or

d. an individual’s mem-bership in a union.31

The New York law defines “recre-ational activities” as “lawful,leisure-time activity, for which theemployee receives no compensationand which is generally engaged in forrecreational purposes, including butnot limited to sports, games, hobbies,exercise, reading and the viewing oftelevision, movies and similar materi-al.”32

Similarly, other states also protectemployees engaged in legal recre-ational activities or lawful activities,e.g., California (prohibits “demotion,suspension, or discharge from em-ployment for lawful conduct occurringduring nonworking hours away fromthe employer’s premises”);33 Colorado(“to terminate the employment of anyemployee due to that employee’sengaging in any lawful activity off thepremises of the employer during non-working hours unless such arestriction” relates to a job-relatedrequirement or is necessary to avoid aconflict of interest);34 North Dakota(adverse employment actions againstemployees who “participat[e] in lawfulactivity off the employer’s premisesduring nonworking hours which is notin direct conflict with the essentialbusiness-related interests of theemployer”).35

Although there are no reporteddecisions interpreting “recreationalactivities” or “off duty conduct” toapply to using the Internet or blog-ging, it is possible that an employeecould raise such a claim if terminatedor disciplined because of bloggingactivities.

Unfair Labor Practice ChargesAlthough the National Labor

Relations Act (“NLRA”)36 principallygoverns the right of employees to joinand assist labor unions, it also pro-tects the right of covered employees,regardless of their union status, toengage in “concerted activities” for“mutual aid or protection.”37 Employ-ers may not interfere, restrain, orcoerce employees — i.e., discipline,terminate or take adverse actions —in the free exercise of rights protectedby the NLRA.38

Both the National Labor RelationsBoard, which enforces the NLRA, andcourts have found that employees’talk of matters of common concern,39

such as wages,40 of dissatisfactionwith the employer constitutes pro-tected concerted activity where it isintended to spur group action (eventhough it does not actually result inorganized action or collective bar-gaining).41 However, the lower thecorrelation between employees’ con-cerns and the concerted activity, thelower the likelihood that the activitywill be considered to be for mutual aidor protection.42

An employee’s actions to improveemployment conditions is protectedeven if s/he uses “channels outsidethe immediate employee-employerrelationship.”43 In fact, the use of theInternet, and e-mail, is becoming acritical tool for union organizers seek-ing to organize workplaces, and foremployees who work on differentshifts and locations to communicateabout work-related matters.44 Signifi-cantly, electronic communications,such as email messages and websitepublications, have been recognizedunder the NLRA as protected forms ofcommunication.45 For example, inTimekeeping Systems, Inc., the NLRBfound that a non-unionized employeewho was terminated after sending ane-mail that was critical of the compa-ny’s vacation policies engaged inprotected concerted activity, and histermination violated the NLRA.46

Similarly, in Konop v. Hawaiian Air-lines, Inc., the Court of Appeals foundthat a pilot’s postings on his privatewebsite which were critical of the air-line, its executives, its labor positionand the incumbent union could beconsidered protected concertedactivity under the Railway Labor Act.47

It is important to note that not allInternet postings are protected underthe NLRA. “A party forfeits his protec-tion under the [NLRA] by circulatingdefamatory or insulting materialknown to be false.”48

It is reasonable to suppose thatcertain blogging activities may alsofind protection under the NLRAbecause even a lone employee’sactions may constitute “concertedactivity” if s/he acts in a representa-tive capacity or with the intent toinduce group action.49 Personal “grip-ing,”50 however, is unprotected


because “at some point an individualemployee’s actions may become soremotely related to the activities offellow employees that it cannot rea-sonably be said that the employee isengaged in concerted activity.”51

Moreover, even if the employee’saction does not meet the test of con-certed activity, his/her termination stillmay be an unfair labor practice if itrestrains or interferes with concertedactivity by others.52

What Can Companies DoAccording to a survey conducted

by the Society for Human ResourceManagement, 85% of companieshave not adopted policies respectingemployee blogging.53 Employers shoulddevelop such policies which may:

• prohibit the use of companytime and equipment for per-sonal blogging activities;

• prohibit the disclosure of thecompany’s confidential, propri-etary, or trade secret information;

• require employees to seekcompany clarification aboutcertain information has beenpublicly disclosed before theydiscuss it in a posting.

• educate employees about thepossible criminal and civil lia-bility for copyright infringement;

• educate employees about theirpersonal liability for defamation;

• encourage employees to berespectful to their coworkersand their privacy;

• extend employment policiessuch as anti-harassment poli-cies and Codes of Conduct toblogging activities;

• ask employees to include adisclaimer on their blog notingthat the opinions expressedare only those of the blog’sauthor.

In preparing its policies, a compa-ny should remember that an overlyrestrictive policy that prevents ordeters employees from discussingworkplace terms or conditions orrestricts employees from engaging inotherwise lawful off-duty conductmay violate the NLRA or other statelaws.

ConclusionWith the Internet becoming more

and more a part of our daily lives,there will be a larger segment of the

workforce adding to the content ofthe world wide web through blogs,and employers should considerdeveloping policies that regulateblogging content. Also, prior to takingany adverse employment actionagainst employees for blog content,employers should be mindful of legalclaims that employees could raise,such as unlawful retaliation, discrimi-nation or wrongful termination.Employers should also be aware thatmany terminated bloggers, such asHeather Armstrong, have becomecelebrities in their own right, whichmay cause additional and unwantedpublicity for their employer.

ENDNOTES1 Merriam-Webster’s Online Dictionary:

www.m-w.com/dictionary/blog.2 Technocrati, a blog search engine:

www.technocrati.com/about/.3 This article is principally written for private

employers; public employers may haveadditional limitations on their ability to takeaction against employees, including theFirst Amendment and due process consid-erations.

4 www.dooce.com/about.html.5 www.blogossary.com/define/dooce/.6 Amy Joyce, When Blogging Gets Risky:

Bad-mouthing Job Leads to Firings,MSNBC, Feb. 10, 2005,www.msnbc.msn.com/id/6949377/.

7 Amy Joyce, When Blogging Gets Risky:Bad-mouthing Job Leads to Firings,MSNBC, Feb. 10, 2005,www.msnbc.msn.com/id/6949377/.

8 Amy Joyce, Free Expression Can Be CostlyWhen Bloggers Bad-Mouth Jobs, Feb. 11,2005, The Washington Post.

9 See Amy Joyce, Life at Work, April 24,2007, www.washingtonpost.com/wp-dyn/content/discussion/2007/04/17/DI2007041700898.html (last visited May 4, 2007)

10 Blakey v. Cont’l Airlines, 164 N.J. 38 (2000)(A female pilot of Continental Airlinesasserted a hostile work environment claimbased, in part, on statements made on anelectronic bulletin board maintained by theairline. The New Jersey Supreme Courtrecognized that “although the electronicbulletin board may not have a physicallocation within a terminal, hangar or air-craft, it may nonetheless have been soclosely related to the workplace environ-ment and beneficial to Continental that acontinuation of harassment on the forumshould be regarded as part of the work-place.”)

11 www.sun.com/aboutsun/media/blogs/poli-cy.html.

12 www.usatoday.com/tech/news/2006-06-25-exec-sun_x.htm.

13 www.dooce.com/about.html14 Payne v. Western & At. R.R. Co., 81 Tenn.

507, 518-19 (1884), overruled on othergrounds.

15 Toussaint v. Cross & Blue Shield of Michi-gan 292 N.W.2d 880, 897 (Mich. 1980) (“An

employer who agrees to discharge only forcause need not lower its standard of per-formance. The employer has promisedemployment only so long as the employeedoes the job required by the employmentcontract”); Small v. Spring Indus., Inc., 357S.E.2d 452, 454-55 (S.C. 1987) (“It was forthe jury to decide whether the handbook,the bulletin, and the oral assurances con-stituted an employment contract. If the juryfound that they did, then it had to decide[the plaintiff’s] actions constituted a seriousoffense which could result in dischargewithout the four-step process.).

16 See e.g., Nees v. Hocks, 536 P.2d 512 (Or.1975) (violation of public policy whereemployee was discharged for jury service).

17 Hartt v. Sony Elec. Broad. & Prof’l Co., 69F.App’x 889, 890 (9th Cir. 2003) (no publicpolicy against discharging an employee formoonlighting) (citing Stevenson v. SuperiorCourt, 66 Cal. Rptr. 2d 888, 941 P.2d 1157(Cal. 1997)). See also Mont. Code Ann. §§39-2-903(7) (2006) (“‘Public policy’ meansa policy in effect at the time of the dis-charge concerning the public health,safety, or welfare established by constitu-tional provision, statute, or administrativerule.”); Pierce v. Ortho PharmaceuticalCorp., 84 N.J. 58, 72, 417 A.2d 505 (1980)(at-will employee may have claim forwrongful discharge by showing that termi-nation was “contrary to a clear mandate ofpublic policy”); MacDougall v. Weichert,144 N.J. 380, 391, 677 A.2d 162 (1996)(“Sources of public policy include theUnited States and New JerseyConstitutions; federal and state laws andadministrative rules, regulations and deci-sions; the common law and specificjudicial decisions; and in certain cases,professional codes of ethics.”) (citingHennessey v. Coastal Eagle Point Oil Co.,129 N.J. 81, 92-93, 609 A.2d 11 (1992)).

18 Geary v. U.S. Steel Corp., 456 Pa. 171,184, 319 A.2d 174, 180 (1974).

19 Staats v. Ohio Nat’l Life Ins. Co., 620 F.Supp. 118 (W.D. Pa. 1985).

20 Staats v. Ohio Nat’l Life Ins. Co., 620 F.Supp. 118, 119 (W.D. Pa. 1985).

21 Staats v. Ohio Nat’l Life Ins. Co., 620 F.Supp. 118, 120 (W.D. Pa. 1985).

22 Wiegand v. Motiva Enterprises, LLC, 295 F.Supp. 2d 465 (D.N.J. 2003).

23 Wiegand v. Motiva Enterprises, LLC, 295 F.Supp. 2d 465, 474 (D.N.J. 2003).



26 Wiegand v. Motiva Enterprises, LLC, 295 F.Supp. 2d 465, 474-475 (D.N.J. 2003), cit-ing Cantwell v. Conn., 310 U.S. 296, 304,84 L. Ed. 1213, 60 S. Ct. 900 (1940).


28 18 U.S.C. § 1514A. 29 See N.J.S.A. 34:19-1 et seq. (New Jersey’s

Conscientious Employee Protection Act);N.Y. Lab. Law § 740 (New York whistle-blower protection law); Conn. Gen Stat. §31-51m (Connecticut whistleblower pro-tection law).

30 Http://www.shrm.org/hrmagazine/arti-cles/0203/0203hirschmana.asp.


31 NY Labor Law § 201-d.32 NY Labor Law § 201-d (1)(b).33 Cal. Lab. Code § 96(k).34 C.R.S. 24-34-402.5(1).35 N.D. Cent. Code § 14-02.4-03.36 29 U.S.C. § 151 et seq.37 29 U.S.C. §§ 157-158(a)(1). 38 29 U.S.C. § 158(a)(1); NLRB v. Wash.

Aluminum Co., 370 U.S. 9, 14, 82 S. Ct.1099 (1962) (concerted activities includematters of common concern).

39 NLRB v. Brookshire Grocery Co., 919 F.2d359, 362 (5th Cir. 1990) (“Concerted activi-ties include matters of common concern”)(citing NLRB v. Washington Aluminum Co.,370 U.S. 9, 17, 82 S. Ct. 1099 (1962)).

40 D & D Distrib. Co. v. NLRB, 801 F.2d 636,639-40 (3d Cir. 1986).

41 Mushroom Transp. Co. v. NLRB, 330 F.2d683, 685 (3d Cir. 1964) (“It is not ques-tioned that a conversation may constitute aconcerted activity although it involves onlya speaker and a listener, but to qualify assuch, it must appear at the very least that itwas engaged in with the object of initiatingor inducing or preparing for group action orthat it had some relation to group action inthe interest of the employees.”).

42 Local 174, UAV v. NLRB, 645 F.2d 1151,1154-55 (D.C. Cir. 1981) (distribution ofpolitical leaflet unprotected because “theprincipal thrust of the leaflet was to induceemployees to vote for specific candidates,not to educate them on political issues rel-evant to their employment conditions”).

43 Eastex, Inc. v. NLRB 437 U.S. 556, 565(1978).

44 In fact, on March 27, 2007, the NLRB heardarguments on the issue of whether unionsand employees can use employer e-mailsystems to engage in activities protectedunder the NLRA. Guard PublishingCompany d/b/a The Register Guard, 36-CA-8743-1 (2001).

45 Timekeeping Sys., Inc., 323 N.L.R.B. 244(1997); Konop v. Hawaiian Airlines , 302F.3d 868, 882 (9th Cir. 2002), cert. denied,537 U.S. 1193 (2003).

46 Timekeeping Sys., Inc., 323 N.L.R.B. 244(1997)

47 Konop v. Hawaiian Airlines , 302 F.3d 868(9th Cir. 2002), cert. denied, 537 U.S. 1193(2003).

48 Nat’l Ass’n of Letter Carriers v. Austin, 418U.S. 264, 282-83, 94 S. Ct. 2770 (1974);San Antonio Comm. Hosp. v. S. Cal. Dist.Council of Carpenters, 125 F.3d 1230, 1237(9th Cir. 1997).

49 NLRB v. City of Disposal Systems, Inc., 465U.S. 822, 833 (1984).

50 Capital Ornamental Concrete Specialties,Inc., 248 N.L.R.B. 851 (1980) (employee’s“personal ‘gripe’” was not a protectedactivity under the NLRA).



53 Amy Joyce, Blogged Out of a Job, Feb. 19,2006, The Washington Post (citing a studyby the Society of Human ResourceManagement, July 2006).

occurred while he flagrantly violatedtraffic laws. The egregious natureof the offense had caused his resig-nation from the U.S. House ofRepresentatives and considerablepublic approbation. Nonetheless, theCourt noted that adverse publicityand personal grief or remorse werenot factors in the determination ofappropriate. Nor, it noted, were fac-tors such as criminal punishment thetrue objective of attorney discipline,but rather to protect the public from areoccurrence of conduct which doesnot rise to the high standards to beexpected from members of the bar.

Applying all of this to the facts ofthe case and the discipline meted outby other courts in arguably similarcases, the Court found that the pro-posed 26-month suspension wasappropriate under all the circum-stances and would terminate withoutfurther proceedings when it ran out inFebruary, 2006, so long as Janklowcontinued to comply with the terms ofhis probation, especially as they relat-ed to his driving.

The opinion drew a dissent whichargued Janklow should not be rein-stated in the bar until he hadsatisfactorily completed his three-year criminal probationary period. Thedissent agreed with the majority’sanalysis of the first element but as tothe second, argued that

Janklow’s case is differ-ent because he is themost well-known attor-ney in the State ofSouth Dakota as aresult of his service aAttorney General . . . asGovernor . . . and as amember of the U.S.House of Representa-tives from 2004 until hisresignation followingthe events leading tothis disciplinary action.Because of his promi-nence, his arrest andconvictions havecaused more harm tothe public image andview of the integrity ofattorneys, the bar asso-

ciation, and the legalprofession than similarconduct by a lawyer oflesser renown. . . Jank-low’s acknowledgedviolations of the trafficlaws and these convic-tions, while he was anelected public official,have tarnished theimage and integrity ofthe legal profession asa whole.

Slip Op. at 15. These two cases demonstrate that

the deleterious effects of flying tooclose to the buildups can do structur-al damage which still evidences itselfyears after the flight. Prudent pilotsstay within the FARs and avoid thelong-lasting consequences of losingflight privileges.

In sum, then, the same attributeswhich make for safe piloting — care-ful planning, knowledge of regulatoryrequirements, awareness of one’senvironment, recognition of develop-ing hazards — are key to avoidingethical difficulties in the practice oflaw. Circumnavigating the buildups isnot difficult if these are applied toboth aviation and litigation.

ETHICS: CIRCUMNAVIGATING THE BUILDUPS(Continued from page 32)

Check It Out!LPBA is on-line.

The Associations’ page onthe world wide web can

be accessed at:http://www.lpba.org.

David H. AbramsLaw Offices of David H. Abrams4660 La Jolla Village Drive5th Floor, PMB #50088San Diego, CA 92122Work: 619-564-4842Email: [email protected]

Mr. Abrams practices aviation,general business and family law. Heis an ME instrument rated commercialpilot and owns a C310K.

� ● �

Steven Douglas AllenEclipse Aviation2503 Clark Carr Loop SEAlbuquerque, NM 87106Work: 505-944-3291Email: [email protected]

Mr. Allen practices business andaviation law. He is rated as a T-38 IP.

� ● �

Robert C. AveryAscione, Heideman & McKay, LLC2696 North University AvenueProvo, UT 84604Work: 801-812-1000Email: [email protected]

Mr. Avery specializes in litigationand finance and operates a Cessna182.

� ● �

Patrick T. ConnerThompson Coburn LLPOne US Bank Plaza St. Louis, MO 63101Work: 314-552-6000Email: [email protected]

Mr. Conner specializes in tax,estate planning and business law andholds a private pilot SEL.

R. Bruce Cozzens, Jr.New York State Supreme Court100 Supreme Court DriveMineola, NY 11501Work: 516-571-2484Email: [email protected]

Mr. Cozzens holds a private pilotsingle engine land rated and special-izes in judiciary and civil law.

� ● �

Mary Abigail EdwardsDean of StudentsCharleston School of LawP.O. Box 535 Charleston, SC 29402Work: 843-329-1000 Ext. 2413Email: [email protected]

Mrs. Edwards is the Dean ofStudents at Charleston School of Lawand owns a Cessna 172.

� ● �

Kenneth C. GregoryLaw Offices of Kenneth C. Gregory44901 Village Court, Suite DPalm Desert, CA 92260Work: 760-776-1619

Mr. Gregory specializes in criminaldefense, aviation law and employ-ment law. He is COM MEL andinstrument and COM helicopter ratedand operates a Cessna 182.

� ● �

Nathan S. Haley9423 Biscayne BoulevardDallas, TX 75218Work: 214-335-4093Email: [email protected]

Mr. Haley is a student at SMUDedman School of Law.

Harlan Arthur PetersonTransit Team, Inc.1154 5th Street North Minneapolis, MN 55422Work: 612-332-3323Email: [email protected]

� ● �

Edward A. Rose, Jr. Edward A. Rose, Jr., Esq., APC1550 Sixth Avenue San Diego, CA 92101Work: 619-232-7979Email: [email protected]

Mr. Rose specializes in tax and civillitigation. He holds a commercial MELand owns a Cessna 3100.

� ● �

Bruce A. RossU.S. Department of Justice (Aviation

& Admiralty Litigation)U.S. DOJ, Civil DivisionP.O. Box 14271Washington, D.C. 2004-2471Work: 202-616-4059Email: [email protected]

Mr. Ross specializes in aviationand admiralty litigation. He holds acommercial SE and MEL.

� ● �

Larry H. Williams2114 Riverview DriveMurfreesboro, TN 37129Work: 615-585-9989Email: [email protected]

Mr. Williams holds an ATP and CFIand operates a C-172.


LPBA Welcomes New MembersThis column is a regular feature of the Journal and its purpose is twofold: to introduce our new mem-

bers and to update our annual membership roster. To the new members listed below and hereafter, wewelcome you to our membership and hope for many fruitful years of association.

ELIGIBILITY

Membership available to all persons duly licensed to practice law and who possessor have held a airman's certificate for piloting of aircraft. (Lawyer/Pilot)

□ Voting Member

Membership available to all persons duly licensed to practice law and who have aninterest in aviation safety and aviation law. (Lawyer/Non-Pilot)

□ Non-Voting Member

Membership available to students enrolled in and currently attending a law schoolwho have demonstrated an interest in aviation. Non-Voting. (Student/Pilot)

I am attending:(name of law school)

□ Student Member

Available to all persons who have an interest in aviation safety or aviation law.Non-Voting.

□ Associate

Available to all persons, firms, or corporations contributing to the financial supportof this association's efforts to enhance aviation safety. Non-Voting

□ Patron

LAWYER-PILOTS BAR ASSOCIATION1150 Huntington BuildingCleveland, Ohio 44115

PERIODICALS

U.S. POSTAGE

PA I DCleveland, Ohio

I hereby submit my application for membership in the LAWYER-PILOTS BAR ASSOCIATION and enclose herewith my check inthe sum of $99.00* to cover the payment of dues to June 30th next**, which includes a subscription to the LPBA Journal. I doagree to abide by the by-laws and rules of the association.

NAME:

FIRM NAME:

ADDRESS:

TELEPHONES: Office: ( ) Residence: ( )

Fax: ( ) E-Mail:

(First) (Middle) (Last) (Spouse's Name)

(office)

(residence)

BIRTHDATE: PLACE OF BIRTH:

LAW SCHOOL ATTENDED: YEAR ADMITTED TO BAR:

BAR MEMBERSHIPS:

AREAS OF PRACTICE:

AIRMAN RATINGS: TOTAL TIME:

AIRPLANE OWNED □ OR USUALLY OPERATED □:

Dated:

* Law student membership is available for $49.00. Upon admission to the bar, an additional $50.00 fee will be due. Thiswill entitle the student to a Voting Membership.

** For applications postmarked after March 1, dues cover period through June of the following year.

How did you learn about LPBA?__________________________________________________________ Referred by: _______________

(type) (N Number)

(signature of applicant)

Printed in U.S.A.

“dedicated to aviation safety andthe just administration of the law”

PLEASE TYPE OR PRINTMail application to:Membership ChairmanLawyer-Pilots Bar AssociationP.O. Box 1510Edgewater, MD 21037Tel. (410) 571-1750Fax (410) 571-1780www.lpba.org

lawyer-pilots bar association journal · 2 lpba journal summer 2007 the lawyer-pilots bar...

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