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............................IN THE UNITED STATES COURT OF APPEALS
............................FOR THE DISTRICT OF COLUMBIA
............................CASE NO. 94-1318
___________________________________________________________________
PETITION FOR REVIEW OF THE
OPINION AND ORDER OF THE
NATIONAL TRANSPORTATION
SAFETY BOARD
NTSB Order No. EA-4094
___________________________________________________________________
ROBERT ANDERSON HOOVER,
Petitioner,
v.
DAVID R. HINSON, Administrator
Federal Aviation Administration,
NATIONAL TRANSPORTATION
SAFETY BOARD,
Respondent,
____________________________________________________________________
INITIAL BRIEF OF PETITIONER
ROBERT ANDERSON HOOVER
____________________________________________________________________
F. Lee Bailey
Tony Marie Kennedy
Bailey, Fishman, Freeman & Ferrin
1400 Centrepark Boulevard
Suite 909
West Palm Beach, FL 33401
John S. Yodice
Ronald D. Golden
Yodice Associates
500 E Street S.W.
Suite 930
Washington, D.C. 20024
Attorneys for Petitioner
Oral Argument: October 31, 1994
______________________________________________________________
ORAL ARGUMENT: 10/31/94
STATEMENT OF SUBJECT MATTER
AND APPELLATE JURISDICTION
Jurisdiction before the NTSB was premised on 49 U.S.C. App. 1429(c) (appeal of FAA revocation of medical certificate). The appeal challenged FAA's Emergency Order of Revocation dated December 14, 1993 which revoked Robert Anderson Hoover's medical certificate.
Appellate jurisdiction is premised on 49 U.S.C. App. 1486(a) (order of the NTSB). The NTSB Opinion and Order served February 18, 1994 constitutes a final order which leaves no issues to be resolved. The Opinion and Order reversed the initial decision of the administrative law judge and affirmed FAA's order revoking Hoover's medical certificate on an emergency basis.
This action was filed in a timely manner on April 15, 1994, within sixty (60) days of the service of the NTSB Opinion and Order (49 U.S.C. App. 1486(a)).
STATEMENT OF ISSUES FOR REVIEW
I. Did the NTSB usurp the function of the trier of fact, and in doing so, violate Hoover's due process rights?
II. Did the preponderance of the evidence support Judge Mullins' Decision?
III. Has Hoover met the medical standards prescribed by the Federal Aviation Regulations?
STATEMENT OF PROCEDURAL HISTORY
The FAA revoked Hoover's airman medical certificate on an emergency basis on December 14, 1993, alleging that Hoover did not meet the medical standards of 14 C.F.R. 67.15(d)(2)(ii) and (f)(2) and 14 C.F.R. 67.17(d)(2)(ii) and (f)(2). Hoover appealed the Administrator's Emergency Order, prompting a full hearing before Administrative Law Judge William R. Mullins, in Oklahoma City, Oklahoma, commencing January 13, 1994 and ending on January 16, 1994. At the conclusion of the hearing, Judge Mullins found that the Administrator had not shown by a preponderance of the evidence that Hoover suffered the cognitive deficit as alleged in the Order, and overruled the Adminstrator's Emergency Order of Revocation. On January 24, 1994, the Administrator appealed Judge Mullins' Order to the Board, resulting in its Order, served February 18, 1994, affirming the Administrator's Emergency Order of Revocation of Hoover's airman medical certificate. On April 15, 1994, Hoover filed in this Court a timely appeal of the Board's decision.
STATEMENT OF THE FACTS
Hoover is a well known, 72 year old aviator, and acknowledged Dean of air show pilots. General Chuck Yeager has described Hoover as "the best pilot I ever knew." Hoover learned to fly at age 16 and subsequently became a fighter pilot. In World War II, he flew 59 combat missions, during the last of which he was shot down and spent most of the remainder of the war as a prisoner in Stalag 1 prison camp. (A346-48). Hoover subsequently worked as a test pilot both for the military and private industry, and later began flying experimental and newly designed aircraft. Hoover tested and/or flew countless aircraft and was on the XS-1 rocket research program with Chuck Yeager. (A349-55)
During the course of his employment, Hoover developed various flight demonstrations routines. One of those routines, involving the Aero Commander Shrike, became his trademark. Hoover has performed this routine worldwide for 25 years until April 1993, when the Federal Air Surgeon required that he surrender his medical certificate.
For 30 years, Hoover has been the safety pilot for the Reno Air Races and has successfully talked numerous performers though flight emergencies. (A355-56) Throughout his career, Hoover has experienced and successfully coped with countless emergencies and mechanical failures, both his own and those of others. In one year he saved the lives of 8 pilots. (A355-56) He estimates that he has accumulated 20,000 hours of flight time. (A423-24) On June 19-21, 1992, Hoover participated in the Air and Space Air Show in Oklahoma City, Oklahoma. He performed his usual and customary aerobatics routine each day. (A381) On August 26, 1992, more than two months after the performance, Clint Boehler and James Kelln, two FAA inspectors, closeted themselves in a room in the Oklahoma City FAA Flight Standards District Office and planned a way to have Hoover grounded. (A492) During their conversation, which was overheard by another FAA inspector, Norbitt Nester, Boehler and Kelln conspired to file two separate reports, in which they collaborated, and intended to make it appear as if they had not collaborated. (A492-93) These reports alleged that Hoover's flying had deteriorated and that he appeared medically unfit. They further alleged that Hoover was shunned by his colleagues. (A717-19) These statements were filed, and the next day, August 27, 1992, the FAA, acting on the inspectors' strikingly similar and unsubstantiated allegations of substandard performance at an air show more than two months earlier, demanded that Hoover undergo psychiatric evaluations by doctors of the FAA's choosing.
Hoover, having had no reason to question his medical fitness or flying abilities, complied. He met with Dr. Garrett O'Connor who had been selected by the FAA to conduct the testing. Dr. O'Connor administered psychiatric tests and informed Hoover and his personal Aviation Medical Examiner, Dr. Puskas, that Hoover passed the exam and was clean. (A399) However, he asked Hoover to take some additional tests to make sure that everything was "squeaky clean." (A399) Again, Hoover consented.
Hoover took additional tests from Dr. Robert Elliott, Dr. Michael Gold and Dr. Alberto Salcedo. None of these doctors was selected by Hoover. At the conclusion of the tests, Dr. Elliott did not state that Hoover was unable to fly safely. Instead, he recommended Hoover "be referred to a neurologist to rule out neuropathology or an identifiable neurodegenerative disease process." (A71) On November 4, 1992, Dr. Gold performed a neurologic examination and found no neurologic abnormality. An EEG and an MRI scan were performed and both were normal. (A293-94) Dr. Gold informed Hoover and Dr. Puskas that there was absolutely nothing wrong with Hoover; that he could not find anything suspicious. (A404) A SPECT scan was performed and reviewed by Dr. Salcedo. It was termed a border-line examination. (A541) These physicians provided reports to Dr. O'Connor upon concluding their testing. After evaluating the test results, Dr. O'Connor expressed the opinion that Hoover was "fit to hold a second-class medical certificate from a neuropsychological and neuropsychiatric point of view and should therefore be permitted to continue his flight activities." (A703; 73) Hoover had every reason to believe that the FAA would terminate its inquiry, but this did not happen. On April 14, 1993, Hoover and Dr. Puskas participated in a conference call with Dr. Barton Pakull, Dr. William Hark and Dr. Jon Jordan from the FAA. Despite the recommendation from Dr. O'Connor, Dr. Pakull stated he did not believe Hoover was fit to fly. He further stated that the doctors who performed the tests and reported their conclusions were just "tools," and that it is he who makes the decisions in Washington. (A405) Consequently, Dr. Pakull, on April 13, 1994, informed Hoover that he was grounded.
Hoover protested on the basis that he had complied with the FAA's request for testing, at his own expense, and had received a clean bill of health. From the time he was first contacted by the FAA in August, 1992 up until the time of the April 14, 1993 conversation with Dr. Pakull, Hoover had performed aerobatic routines 33 times without incident. As a result of his pleading, the FAA agreed to a new, independent examination if Hoover surrendered his medical certificate to his flight surgeon, Dr. Puskas. Although under no obligation to do so, Hoover complied with this request.
Consequently, Hoover cancelled all further performances for which he was scheduled under contract for the remainder of 1993 and thereafter, earned no income for 1993. (404-05). The FAA sent Hoover to the UCLA Neuropsychiatric Institute for further testing which resulted in a recommendation from the UCLA panel that his airman certificate be reinstated. (A678). Acting in complete disregard of this second recommendation, the FAA refused to institute Hoover's certificate and forwarded the test results to a psychologist - Dr. Richard Gaines - associated with the FAA, who disagreed with the Institute.
Hoover subsequently brought his problem with the FAA to the attention of Dr. Brent Hisey, a neurosurgeon and a flight surgeon at Tinker Air Force Base in Oklahoma. Dr. Hisey agreed to review Hoover's case on the condition that he submit to another complete examination, and that Dr. Hisey render his opinion candidly whether favorable to Hoover or not. (A476-77) Hoover then underwent a third series of exams with Dr. Hisey and clinical psychologist David Johnsen. The conclusion reached from this third set of tests was that Hoover was qualified for his medical certificate, and the test results were forwarded to the FAA. (A631). Despite the fact that three independent sets of tests concluded Hoover should retain his medical certificate, Dr. Pakull would not change his position. Hoover then demanded return of his certificate, and the FAA responded on December 14, 1993 with an Emergency Order of Revocation, alleging that Hoover did not meet the medical standards of the Federal Aviation Regulations. The Emergency Order of Revocation was filed as the Complaint in this Case.
THE ADMINISTRATOR'S CASE
Dr. Robert W. Elliott
The FAA called Dr. Elliott as an expert in the field of neuropsychology. (A16-20) Elliott has personally known Dr. Barton Pakull for 16 or 17 years. (A123-24) One-third of Elliott's income is generated by work from the FAA (A119-20) Elliott examined Hoover in October, 1992 pursuant to a referral by Dr. Garrett O'Connor. (A23-4) Elliott testified that in testing Hoover, he was attempting to assess whether there was evidence of neuropathology; he was not, in any way, assessing Hoover's ability to perform as a pilot:
THE WITNESS: When I am looking to identify neuropathology, I may use a different set of norms than I would if I were directly attempting to assess piloting skills.
JUDGE MULLINS: What were you attempting to assess in this --
THE WITNESS: In this particular case, I was attempting to assess whether, in fact there was evidence of neuropathology.
(Q) Okay. Were you assessing in any way his ability to perform as a pilot? (A31-32)
(A) No. That was not what I was designated to do. (A32)
Dr. Elliott administered 12 tests, one of which was excluded due to its experimental nature. The tests administered were as follows: the Wechsler Adult Intelligence Scale - Revised (WAIS-R); the Trail Making Test (Parts A and B); the Booklet Category Test; the Rey Osterrieth Complex Figure Test; the Rey Auditory-Verbal Learning Test; the Wisconsin Card Sorting Test; the Boston Naming Test; the Wechsler Memory Scale - Revised; the Controlled Oral Word Association Test; the Manual Finger Tapping Test; and the FAA Computerized Cognitive Screening Battery (COGSCREEN). According to Elliott, Hoover's performance varied. His verbal and perceptual organization skills were intact, but his problems arose in speed, executive functions, using trial and error learning, problem solving and sequencing. (A65-66) Elliott testified that the results of his standard battery of neuropsychological testing reflected an individual who has difficulty in reasoning processes and thinking through situations, particularly situations that are novel. (A68)
According to Elliott, it is the Wisconsin Card Sorting Test which assesses a person's ability to use logic and reasoning to figure out how to sort categories; it tests the executive function which is the ability to solve novel problems in an efficient manner. (A55) The Wisconsin Card Sorting Test was the sixth test Dr. Elliott administered to Hoover. (A53) Elliott testified that one of the hallmark characteristics of cognitive impairment is that there is a loss of flexibility in the reasoning process; even though a person is getting feedback that a response is incorrect, they continue to use the same incorrect response continuously. (A56) In Elliott's opinion, flexibility in terms of reasoning process is probably one of the more critical features in terms of piloting. (A58) Elliott further testified that Hoover's performance on the Card Sorting Test was definitely within the significantly impaired range. (A56) Elliott testified that figuring out solutions to a novel problem is the piloting skill that correlates to the task of the Wisconsin Card Sorting Test. (A169) Elliott also testified that given a novel situation that Hoover has not yet encountered, the impairment would effect his performance. (A95) Elliott affirmed several times that he did not administer to Hoover a research version of the Wisconsin Card Sorting Test; that the current edition is designated as a computer version, not a research edition. (A54; 57) However, on the second day of trial, Elliott admitted that he administered the research version of the Wisconsin Card Sorting Test to Hoover:
(Q) That you had used a research version. You assured the Court that the version you used was not research. Correct?
(A) That is correct.
(Q) And then you learned that Dr. Appel had contacted the manufacturer and had received written recognition of the fact that nothing other than research versions had ever been shipped, and you learned that by calling the manufacturer, didn't you?
(A) That is correct. (A156)
Elliott admitted that his impression after all of the testing was:
"His overall intellectual capability, skills are intact, and he shows no evidence of language or vocabulary deficits. His overall memory skills appear to be intact with weaknesses in selected, discrete areas. His short-term visual memory, divided attention and long-term memory skills were intact. " (A136)
Furthermore, Elliott documented, "I can't make a determination as to whether or not there is neuropathology or degenerative disease process present," and that Hoover should be referred to a neurologist to rule out neuropathology or some identifiable neurodegenerative disease process. (A711; 138) Elliott verified that Dr. O'Connor expressed the opinion, after receiving Elliott's test results and conclusions, that Hoover was fit to hold a second class medical certificate. (A73)
When questioned as to his concern over the fact that Hoover, a man Elliott testified about as being cognitively impaired, had flown in numerous air shows after the June 1992 air show, the following exchange took place:
(Q) So you must have appreciated the fact that from June 19, 20 and 21, 1992, until the day you saw him, he was out flying other air shows. Correct?
(A) That is correct.
(Q) Was it your understanding that these air shows were flown in such a way that the public might be in jeopardy from cashing it in halfway through a loop?
******
(A) At that particular point, I can't say that -- that was not on my mind. (A134)
******
(Q) Did you on October 30, Dr. Elliott, have an impression that this man was a danger to himself or the public if he continued to perform aerobatics?
(A) I had not fully formed my opinion at that time.
(Q) Ah, then you haven't seen Mr. Hoover since that time, have you?
(A) That is correct.
(Q) You haven't given him any tests since that time, have you?
(A) That is correct. (A138-39)
In fact nothing in Elliott's report suggests that Hoover be grounded:
(Q) Do you see anything in your report other than a recommendation that defects be ruled out by another specialist that suggests that Mr. Hoover be grounded, anything? (A) No. (A155)
Furthermore, Elliott testified that at a date after his testing, somebody contacted him and indicated that they might need something a little tougher than what Elliott wrote in his original report:
(Q) When did somebody come to you and say, we need something a little tougher in your opinion, Doctor, than what you wrote? Was that recent?
(A) I don't recall the date. It would have been within the last couple of months. (A140)
Elliott then testified that he was first asked to form an opinion in July of 1993. Elliott further testified that he did not have a duty to tell anyone that he thought that Hoover could be dangerous flying a plane:
(Q) Okay. And you didn't think that for the protection of the public, you owed it to anyone to say, by the way, my expertise tells me this guy is a walking accident; didn't think you had any duty. Is that right?
(A) I did not have a duty. That is correct. (A177)
On cross-examination, Elliott testified that he does not know if he ever tested pilots who were aerobatics specialists, and that he has never concentrated on this specialty in flying in his testing procedures. (A103-04) Elliott's familiarity with the manipulation of aircraft controls is limited to artificial simulators as a student; none of the simulators mimic aerobatics maneuvers. (A104) Elliott was unable to cite articles that have been published on the subject of test pilots who have taken batteries of tests similar to the ones Elliott has given. (A114) Furthermore, Elliott was unable to think of any airmen who have been grounded from aerobatics for turning out test results similar to those obtained by Elliott, nor could Elliott cite how many airmen have been grounded by other doctors in Elliott's field. (A115) Furthermore, Elliott could not think of a single case where a neuropsychologist found defects of the kind he had testified to finding in Hoover and correctly predicted a degenerating performance in aerobatics or test flying. (A119)
Cross-examination also revealed that because Elliott does not have a baseline, he could not testify as to how well Hoover would have performed on the Wisconsin Card Sorting Test at age 50 (A168); nor could he say that Hoover has not been flying with the same exact condition for the past twenty years. (A182) Elliott could not testify as to how many aerobatic pilots would do well on the Wisconsin Card Sorting Test (A168), and could not cite any studies where there has been shown a correlation between aerobatic flying and the Wisconsin Card Sorting Test. (A168-69)
By his own admission, Elliott lied to Hoover about the impact the testing might have on his pilot's license:
(Q) By the way, during that day, did you assure him that nothing that was going on that day was going to impinge on his right to fly.
(A) Yes, I did. (A180)
Furthermore, Elliott admitted to declining to send Dr. Antoinette Appel, Hoover's expert, the data from his tests. (A198)
Dr. Richard N. Gaines
Dr. Gaines is board certified in neuropsychology. (A205). Gaines is a consultant for the FAA and the FAA pays Gaines $260/day to review cases. (A262) On voir dire, Gaines testified that he has used the research edition of the Wisconsin Card Sorting Test because he did not know it was the research edition. (A214) Gaines confirmed that he was familiar with Ethical Canon 7.02, which was read to him. Gaines was then asked:
(Q) ... My next question, the obvious: did you ever examine Mr. Hoover?
(A) No. (A219)
Gaines then proceeded to testify that Hoover fell into the impaired range on several critical areas of cognitive skills - processing flexibility, working memory and some attention measures. (A232) Gaines told the FAA that he did not think that Hoover met the criteria to be certified. (A232) Furthermore, Gaines opined that Hoover has some condition which has caused a decrease in cognitive function, but could not speak to what the condition is. (A233) However, in Gaines' mind, the condition represents an increased risk to Hoover's safe operation of an aircraft, and would interfere with Hoover's ability to safely operate an aircraft within the next two years. (A233)
On cross-examination, Gaines revealed that he is not an expert testifying about what pilots do when they are impaired and unimpaired. (A248) When asked if any of the tests that he described have ever been shown to have a predictive value as to whether or not a pilot can handle an emergency properly, Gaines responded, "[t]here is no research to that effect." (A248) When asked if there is any way of ascertaining the value of this "predictive function," Gaines responded that he is not aware of any study conducted or published on it. (A257) Gaines also testified that he does not know what the probability of error is in the average pilot, and has no knowledge of studies showing whether the average pilot behaves appropriately when emergencies arise. (A249) Gaines cannot predict whether Hoover would correctly handle a violent emergency tomorrow. (A250) Gaines was unable to give instances of neuropsychologists predicting accidents which later occur. (A256)
Cross-examination further established that Gaines does not specialize to any degree in examining aerobatics pilots. (A253) He does not have a baseline for increased probability of risk for failures in proper pilot functioning (A253), nor does he have a baseline for Hoover to be able to know whether Hoover had the exact same neurological status when he was 50 years old. (A254) In addition, Gaines admitted that he might not be of the same opinion with respect to the value of this data in predicting the likelihood for failure by an airman if he received identical test results 20 years apart, with a history of flawless flying in the intervening period.
Gaines also testified that if he finds impairment in an exam for the issuance of a medical certificate, he feels he has an obligation to report it to the Federal Air Surgeon. (A271) If it was for some reason left out and later discovered, he would feel a duty to amend the report. (A277) Gaines confirmed that Elliott did not propose in his report that Hoover's medical certificate be denied due to impairment. (A272)
Dr. Jonathan H. Pincus
Dr. Pincus is a neurologist. (A284-86) Pincus is the Chairman of Georgetown University's Neurology Department, which receives grants from the FAA. (A297) Pincus opined that Hoover's medical records establish a neurologic condition and that the condition makes him unable to safely exercise the privileges of a second class airman's certificate, and to do so in the next two years. (A295-96) Part of the basis for Pincus' opinion is his experience in predicting dysfunction in driving automobiles (A341), and the fact that Hoover has had several aviation violations in the 10 year period preceding 1992. (A289) Pincus testified that an increase in aviation violations is of neurological significance and indicates recent impairment (A308; 323), just as people who repeatedly speed in their automobiles have neurological deterioration. (A308-09) Although committing several aviation violations was a factor which led Pincus to believe that Hoover was cognitively impaired, Pincus never reviewed any of the violations to determine their nature. However, to Pincus, that is not significant to his testimony. (A309) Pincus testified that it may be true that there are no studies in which test batteries have been validated against actual flight performance of experienced pilots. (A300)
Although Pincus commented in his report that Dr. Gold's testing was deficient, Pincus never requested that the tests be performed and Pincus never saw Hoover. (A312-13) Pincus acknowledged that he knew that Hoover subsequently submitted with Dr. Brent Hisey to those tests he thought missing, and performed satisfactorily (A316); however, that did not change his opinion. (A319) In addition, Pincus testified that the FAA intended to eliminate the SPECT scans as part of the scientific evidence until Hoover's counsel pursued that avenue. (A316)
Pincus has never predicted dysfunction in a pilot, or a failure to fly properly, based on the Wisconsin Card Sorting Test, and he has never had a case involving a 70 year old show pilot before. (A332-33) Pincus testified that the risk of an impaired person having a fatal flight accident is increased, but does not know what the chance of an accident is for a person who is not impaired. (A336-37) In addition, Pincus could not offer a suggestion as to what a check pilot should look for in Hoover's handling of the controls of a plane which would evidences his dysfunction. (A341-42)
Dr. Harvey A. Ziessman
Dr. Ziessman is board certified in nuclear medicine. (A535) Ziessman testified that his findings were most consistent with a degenerative disease of the brain, due to the symmetry of the hypoprofusions. (A542-43) Dr. Theodre Simon testified that the SPECT scan findings were not consistent with degenerative disease, but with small trauma; there was no evidence of mental impairment. (A891-92) Ziessman also testified that he does not rule out trauma as the cause of the symmetrical hypoprofusions. (A554-55)
On cross-examination, Ziessman stated that Dr. Pincus never consulted with him in July of 1993, even though Pincus had the SPECT scans at that time and regularly requests that Ziessman interpret scans for him. (A546-47) Furthermore, Ziessman was never consulted in any form prior to the notice of the deposition of Simon; the FAA did not intend to offer SPECT scan evidence until it became aware that Hoover was going to produce Dr. Simon. (A549-51)
ROBERT ANDERSON HOOVER'S CASE
Robert A. Hoover
Hoover described the demonstration he performed during the trial, in which the cowl flaps on one side failed and created a lot of imbalanced drag, causing him to draw upon some skills that he does not usually employ during his air show. (A372) Hoover testified that of the maneuvers performed in that demonstration, the one closest to the red line, is the one where he climbs to 3,000 to 3,500 feet, rolls the plane inverted, and pulls through the second half of a loop with both engines feathered. (A375) This maneuver is judged visually. (A375) Hoover testified that he is unaware of anyone who lands without power other than himself. (A376) He has to exercise judgment each time, considering such factors as the weight, wind conditions and temperature. (A376)
Hoover testified about a practice flight he took in a T-28 trainer approximately one week before trial with Ray Hughes, a commercial pilot. Hoover explained that he had not flown in ten months, and wanted to get the rust off. (A386-87) While ten miles out over the Pacific Ocean performing his aerobatic maneuvers, Hoover observed a "chip" warning light which means there is loose metal in the engine's oil system and engine failure is imminent. (A388) When this happened, Hoover headed directly back to the (Torrance, CA) airport, expecting catastrophic engine seizure at any moment. Hoover instructed Hughes to declare a Mayday distress call. They were seven miles off the coast when Hoover was able to get the aircraft under manageable and temporary control. He made it to the runway threshold and touched down. (A389) After landing, the engine seized, and the propeller froze. (A389) The enormous torque forces caused by the sudden stoppage caused the wing bolts to be sheared, and the engine mounts to be warped. The fuselage was buckled behind the engine. (A390) Hoover handled the aircraft alone throughout the entire emergency. (A421-22)
Hoover also testified about the June 1992 air show in Oklahoma City. He described how during his routine on one day of the show, he observed a red light on the nose gear while he was on final approach with both engines feathered. (A379) Hoover restarted both engines in seconds, and aborted the landing, then circled around to make a normal landing. Nobody from the FAA ever questioned Hoover during the entire period of the air show. (A382-83)
During the three days of the air show, Hoover had a cavitation problem. (A384) While experiencing these difficulties, he was in communication with the air boss and told him about the problem. Hoover asked the air boss whether he wished him to land or complete the act he had aborted. (A385) The air boss told him that he had time which meant it was Hoover's decision whether to complete the act or not. (A385) Furthermore, Hoover testified that there was never a time during the June, 1992 air show during which Jim Driskell, the narrator, did not know where he was. (A386) Driskell always had the power to communicate with Hoover while he was in the air. (A386) The first time Hoover became aware of any complaint about his performance in the June 1992 air show was when he received a letter from Dr. Audie Davis. (A396-97)
Hoover testified about an accident in an F-84 in 1947. During this accident, the engine failed and both warning lights came on, burnt out, and the ejection seat failed. Hoover attempted to climb out of the aircraft and was thrown against the tail of the plane, broke his legs, and sustained injury to his face. He had to land via parachute on two broken legs. (A394-95) He also broke his back in an F-100.
Hoover testified that when he set up his appointment with Elliott, the doctor told him the tests would take four hours. (A400) Hoover then made plans for the remainder of the day. (A400) On the day of the testing, which began at 8:00 a.m., Hoover, after requesting a break, received one at mid-day, during which he used the restroom and had a drink of water:
MR. HOOVER:... I asked him how much longer and he said, We are only halfway through. So I advised my wife to cancel all of our plans and I went to the bathroom, got a drink of water, came back, and I didn't get out of that office, I didn't have another break, I did not have lunch, I didn't have a drink of water or a trip to the bathroom until 5:00. (A400)
Furthermore, Elliott assured Hoover on that day that he did not need to worry about losing his pilot's license: "... and he said, Now, there is nothing that I am going to give you today that is going to have anything to do with your losing your license, so don't worry about that." (A402)
Hoover related that on April 14, 1993, Dr. Puskas, his flight surgeon, telephoned Dr. Gold, in Hoover's presence. Gold stated that there was nothing suspicious about Hoover's tests. (A413) Dr. Audie Davis, the FAA doctor who first notified Hoover about the inspectors' complaints, had already cleared him on that basis, and Hoover entered into performance contracts for the remainder of 1993. (A404) Dr. Pakull, on that same day, told Hoover he was not medically fit, during a conference call between Dr. Puskas, Dr. Pakull, Dr. Jordan and Hoover. (A403-04) Hoover explained that he had passed the tests and Pakull responded that those doctors are all mere "tools," and that he makes all the decisions in Washington. (A405-06) Hoover then had to surrender his medical certificate to Dr. Puskas and cancel all contracts. (A404)
Hoover described the role of "ACE" pilots: Aerobatics Competency Evaluators. These positions arose because the air shows were not adequately policed by FAA pilot-inspectors, who lacked competency to judge air show maneuvers. (A410) Air show aerobatic pilots now rely on monitoring by ACEs. Hoover is not aware of an ACE who is in the FAA. (A411)
Hoover described how he was introduced to Dr. Brent Hisey at the Reno Races in September, 1993. Hoover had explained his situation, and Hisey offered to examine him. (A414) Hisey told Hoover that if he found a deficiency he would tell him and make every effort to get him grounded. (A414-15) Dr. Johnsen gave Hoover the same warning. (A414-15)
On cross-examination, Hoover testified that he has flown the Aero Commander for 25 years, that the Shrike routine he demonstrated at the trial was developed 25 years ago, and that he has performed that routine about 2,000 times. (A419-20) Hoover has 20,000 total hours of flying time. (A423-24)
Norbitt G. Nester
Mr. Nester is an aviation safety inspector for the FAA in the operations unit for the Flight Standards District Office in Oklahoma City (FLSDO). (A486) Nester was on duty on June 19, 20 and 21, 1992 as one of the air show monitors for FLSDO. (A486-87) He attended the Friday and Saturday shows. (A487)
Nester testified that the FAA does not have the power to determine the qualifications of aerobatics pilots. About 2 years prior to the trial, determining the qualifications of aerobatics pilots was removed from the job function of the operations inspectors and handed over to the International Council of Air Shows through the ACE program. ACEs actually do the evaluations and the Flight Standards Office simply processes the paperwork. (A488-89)
After the June air shows, Inspector Boehler asked Nester if he had observed anything unusual about Hoover's performance, and Nester responded that he had not. Boehler said that he noticed some things that were substandard, or not what was expected of Hoover. (A490) Nester testified that Boehler said, "the old bastard has been around a long time and he is not what he once was and he has never been violated because of who he is, and it is time he had to stand accountable like everybody else." (A491)
Nester recounted that a few days later, he passed James Kelln's office and saw Boehler in there. Nester overheard Boehler and Kelln talking about what they perceived to be deficiencies in Hoover's performance, and of writing reports. (A492) Nester further testified that Kelln said:
We had better write them and take a look at them so that nobody can compare them and make them think that we sat and did them together, so it would look like they were done side by side. (A493)
Leonard E. Loudenslager
Mr. Loudenslager is a Captain for American Airlines and has been employed by American Airlines for 28 years. (A435-37) He has never taken the Wisconsin Card Sorting, Trailmaking, or the Categories Tests. (A437) Loundenslager is an air show performer, and is the seven time national and 1980 world absolute aerobatic champion. (A438)
Loudenslager explained that he was one of the founders of the ACE program approximately 13 years ago, and that the program recognized that the people most qualified to judge skill levels were those who themselves performed on a regular basis. (A439) The FAA recognized and accepted the ACEs' competency in the field and sanctioned the program. (A439)
Loudenslager recounted that he first observed Hoover in 1964, and has observed him perform countless times since. (A438) He further testified that he has not noticed any change in Hoover's performance over the years he has been observing them. (A442) Loundenslager flew with Hoover during the trial demonstration and observed Hoover's manipulation of the controls, timing and coordination, and did not observe any deficit whatsoever in Hoover's ability to perform. (A442) When asked if he would ever be hesitant to ground Hoover for cause, Loudenslager replied, "No, sir." (A443)
Dr. David Johnsen
Dr. Johnsen is a clinical psychologist. Johnsen explained that a clinical psychologist works primarily with the assessment and treatment of mental disorders. (A447) Johnsen's specialty within clinical psychology is neuropsychological assessment. (A448)
Johnsen administered the Category Test, the Halstead Rate Ten Neuropsychological battery, the Trailmaking Test, Trails A and B of the Halstead Rate Ten Neuropsychological battery, the Wisconsin Card Sorting Test, the card version and the computerized version as a research edition only, and the California Verbal Learning Test. (A453) The results of these tests were that Hoover performed at an average level compared to individuals his own age. (A454) Johnsen did not find anything to suggest that there is a cognitive defect or impairment in Hoover which will someday influence his flying skills. (A454) Johnsen opined that Hoover is qualified to hold a second class certificate, and will be qualified to do so during the next two years. (A456-57) Dr. Johnsen testified:
I made it very clear to Dr. Hisey when he first approached me about considering doing this test and then I reiterated this to Mr. Hoover that, as I do in any case that involves any kind of litigation, it doesn't matter whose side is on who, that what data I get is the data that they will receive and I made it very clear that if I did not feel he was safe to fly, I would make that very clear for his protection and mine. (A456)
Furthermore, Johnsen stated that to administer the research edition of a test would not be unethical, but to make statements as to someone's ability to function based on a research test would be unethical. (A453)
On cross-examination, Johnsen testified that the practice effect on the Category Test would be minimal because there had been a one year lapse. (A462-63) Also, the Trailmaking, the Rey and California Verbal Learning Tests are not subject to the practice effect. (A462-63) Johnsen testified that emotional factors can significantly interfere with cognition. (A468) Furthermore, he does not place much confidence in test results obtained by subjecting a person to 9 hours of testing with one break. (A471) Johnsen confirmed that Dr. Uchiyama's recommendation is consistent with an unrestricted medical certificate for two years since there was no evidence of significant impairment. (A466-67)
With respect to Hoover's ability to repeatedly perform without error, Johnsen testified:
If what caused his poor performance during the alleged incident were an organic problem or a problem with his brain, you would not expect those problems to disappear on subsequent airshows and you would expect those things to -- once the brain is damaged, it is going to stay damaged and he is not going to be able to process information if that were really the problem. So for him to go out and perform in 25 subsequent airshows and not have any problem, no problem such as what was alleged had happened during the first airshow, you would think well, something other than his brain being damaged or being somehow dysfunctional had to have caused that. (A469)
****
For us to give tests and then say based on these tests this individual cannot perform these activities and yet he went out and performed those activities, not just once or twice but 25 subsequent times, to me reduces the assumptions and the generalizations that we can make based on these data... An individual going out and performing the activities it was predicted he could not perform, not just once or twice, but 25 times reduces the assumptions and generalizations that can be made based on the test data. (A470)
Dr. Brent N. Hisey
Dr. Hisey is a neurosurgeon and a flight surgeon, certified by the American Board of Neurologic Surgery. (A473-74) A neurosurgeon cannot achieve board status if he is not competent in neurology; neurology is incorporated into the examination. (A482) Hisey is also a pilot who has flown a variety of civilian aircraft including acrobatic planes. (A474) Since becoming a flight surgeon in 1989, Hisey has seen about 20 pilots per month. He issues medical certificates for the United States Air Force. (A474-75) Hisey agreed to examine Hoover on two conditions:
"... one, I was provided complete access to his medical records and what had taken place with this incident; and number two, that he submit to a thorough examination by myself and Dr. David Johnsen." (A476-77)
Hisey stated that he absolutely would not, out of sympathy, permit Hoover to fly; the ramifications would be too great. (A477)
Hisey conducted a laboratory, neurologic and physical examination of Hoover. (A479) The neurologic test consisted of evaluation of the brain and spinal cord function, specifically looking at the frontal lobes. Hisey testified that by looking at specific reflexes in the brain, a doctor can tell whether the frontal lobes are properly inhibiting certain primitive reflexes that the brain would have if they were not governed by the frontal lobes. (A480) Hisey also testified that he performed on Hoover the recognized and accepted tests in the specialty of neurology that address the question of frontal lobe function. (A481) Also, in order to determine if Hoover had frontal lobe dysfunction, Hisey went through Dr. Pincus' notes and performed those tests that Pincus felt should have been performed. (A481) The results of all of Hisey's tests were within normal limits, with the exception of Hoover's cholesterol level. (A482)
Based on his physical, neurologic and laboratory examination, Hisey's opinion is that Hoover was of average physical stature and had an average neurologic examination for a 71 year old male. (A498) Hisey concluded that Hoover was qualified and fit to hold a second class medical certificate and to continue his flying career (A498), and that he will be able to maintain his present condition for a two year period. (A499) According to Hisey, Hoover is completely competent and fit to hold a second class medical certificate. (A499) Based on the acceptance of all the examining physicians' suggestions and the performance of the follow-up, Hisey testified there is absolutely no evidence that would indicate any reason to restrict a medical certificate if it were given to Hoover today. (A501) If there is an impediment arising from an incurable pathological process the process can never be restored. (A479) Hisey indicated that he does not believe that if the kind of impairment that Elliott and his group allegedly found actually existed, Hoover would be able to perform at the level he performed in 1964 (A479). On cross-examination, Hisey stated that Dr. Uchiyama's recommendation is consistent with an unrestricted medical certificate unless there is some deficit that has been proven to show that Hoover is unsafe when flying. (A500)
Sean D. Tucker
Mr. Tucker is an air show pilot who has performed in over 100 shows and has conducted over 300 performances. Tucker has been designated an ACE since the beginning of the program, and is a member of the safety committee of the ACE program. (A512) At every show done with Hoover, since 1988, he has watched him perform and has noticed no deterioration of any kind. (A505)
Tucker performed in the June, 1992 air show in Oklahoma City and had an opportunity to observe Hoover and interact with him personally. (A506) He did not notice anything unusual about Hoover's performance, mental status or physical condition, or any degradation in performance. (A507; 509) Tucker testified that he disagrees with Inspector Boehler's statement that while in the air, Hoover's timing was off, his maneuvers were not crisp and no maneuver was performed the same way twice. (A510) Tucker described Hoover's performance as crisp and in complete control. (A510-11) Tucker also indicated that if Hoover had made a mistake, one of the air show pilots would have noticed because everybody watches Hoover. (A510-11) Tucker stated, " I don't know of one ACE or air show certification evaluator that would let something slide by if there was an issue of safety. " (A514) In fact, after learning about the FAA's allegations against Hoover, Tucker, Leo Loundenslager and Steve Oliver, ACE designees, got together, discussed Hoover's performance, and concluded that there was no truth to the Inspectors' statements. (A516) Tucker testified that if he learned of or personally observed in Hoover a lack of fitness for flying, he would address the problem and not choose to ignore it in favor of friendship. (A517)
Steven R. Oliver
Mr. Oliver is a professional air show performer and has performed for 30 years and performs about 74 times a year. (A523) He is an ACE designee. (A527) On cross-examination, Oliver testified that the ACE program is concerned with protecting the public, the pilots and the industry. (A533)
Oliver explained that he has personally interacted with Hoover since the mid 1980s and has never observed any degradation over time; on the contrary, his performances have been unbelievably smooth and his mental and physical health appear fine. (A523-25)
Oliver performed at the June 1992 air show, observed Hoover's performance on two of the days, and interacted with him over the weekend. Oliver explained that if there was anything about Hoover that indicated a problem, it would stand out in his mind and nothing does. (A526-27) Oliver disagreed with Inspectors Boehler and Kelln's statements that Hoover's timing was off and his maneuvers were not crisp. (A529-30; 531) Oliver congregated with the other performers during the June 1992 air show and does not believe there is any basis for Boehler's statement that other performers thought Hoover's performance or attitude was substandard. (A529-30; 531) Oliver also observed Hoover perform three times after the June 1992 air show and personally interacted with him, and testified that there has been no degradation in performance. (A527-28) Furthermore, if Oliver observed anything in Hoover that raised a safety concern, he would talk to him. (A532)
Dr. Antoinette R. Appel
Dr. Appel is a neuropsychologist who was awarded her degree in neuropsychology in 1972; it was the first degree in neuropsychology awarded in the United States. (A557) Appel testified that she evaluates people thought to have something wrong with their brains. A large portion of her work involves people involved in traumatic incidents. (A558) Appel has worked with SPECT scans for approximately 4-5 years. (A559) Appel is participating in a formal study involving the question of the correlation of neuropsychological test data with SPECT scan data. (A560) Appel testified that her experience with over 12,000 people with head injuries is that frequently there will be essentially symmetrical injuries on the two sides of the brain. (A561)
Appel confirmed that the computer version of the Wisconsin Card Sorting Test has never been released in other than a research version. (A563; 959) Appel has administered the Wisconsin Card Sorting Test about 5,000 times. (A565) She explained that she took the computerized version, as well as the manual version, and the computerized version took approximately 35 minutes longer to complete. (A566-67) Appel testified that the task between the two versions is different; the computerized version has no diagnostic worth. (A567)
According to Appel, the conditions under which Elliott administered the tests to Hoover, with just one break, can cause a marked deterioration in performance. (A569-70) Breaking for lunch is important because a lack of food will affect blood sugar level, and this effect should be eliminated from testing. (A570) Appel also testified that tension between the examiner and examinee will also have a deleterious effect on the test results. (A570)
Furthermore, telling a patient that the tests will not effect his retaining his job when in fact they will, is in violation of the APA Ethical Code and may be actionable against the licensee. (A571) Appel recounted how she had contacted Elliott about this case in December, 1993, requesting his raw data. Elliott would not accept a faxed copy of the medical release authorization, and told Appel that as he was leaving for Hawaii, she would have to wait until he came back. When Elliott returned, he still did not forward the data to Appel. (A573-75)
Appel quoted Dr. Kay's statements that there have been no studies which have validated the test batteries of psychological tests against actual flight performance of experienced pilots. (A575-76) Appel further testified that neuropsychological data is highly sensitive to true positives and false negatives (A576); that there can be a high percentage of individuals who fail the neuropsychological tests, but who are not, in fact, impaired. (A580) Also, the misclassification on these tests is age-specific; the tests tend to fail to identify deficits in young people and over identify-them in older people. (A580-81)
Furthermore, extracting Elliott's results out, there is no basis on which to be concerned about Hoover's cognitive function. (A581-82) Appel described how she plotted Hoover's test scores acquired after Elliott's exam using the PAR normative data program for the Halstead-Reitan norms, and according to those norms, Hoover performed at the level of an unimpaired 65 year old, an unimpaired 55 year old, an unimpaired 63 year old, and an unimpaired 44 year old on various tests. (A582)
Appel testified that if Hoover has a degenerative disease, practice effect would not make a difference at all because Hoover's brain would be deteriorating. (A571) The best predictor of ability to perform in the future is behavior. Appel observed Hoover for 72 hours. In addition to performing at a normal level on two mental status exams which Appel administered, Appel did not observe any aberrant behavior in the 72 hours. (A583-84)
Appel reiterated that neuropsychological testing is not able to ascertain whether someone is impaired with respect to flying. (A584) Therefore, taking into account a pilot's history is very important as the relationship between the neuropsychological tests and piloting has not been established. (A588) Furthermore, there is no established data showing that aerobatic pilots need to react any faster than someone driving down an undivided highway at 60 m.p.h. (A586-88) Appel opined that Hoover is fit to fly currently and for the next two years. (A588-89)
SUMMARY OF ARGUMENT
I. The NTSB completely negated all of the painstaking effort which went into the trial before the ALJ, denigrated his findings and his analysis in a manner which can only be described as overreaching and offensive, and did so using an ugly bootstrap of its own creation called Doe.
II. The preponderance of the evidence - which it was FAA's duty to provide - clearly supports the decision of the ALJ and flies in the face of the result reached by the NTSB; the only witness who claimed that Hoover was impaired was himself severely impaired, in the credibility department.
III. Hoover has clearly met the standards required of all airmen for the issuance of a second class medical certificate; the FAA has no discretion to deny such an applicant a license, and in doing so has been arbitrary, capricious, irresponsible and dishonest. The NTSB's adoption of FAA's untenable position is a clear violation of Hoover's rights to due process and the equal protection of the laws
ARGUMENT
I. THE NTSB USURPED THE FUNCTION OF THE TRIER OF FACT, AND IN SO DOING VIOLATED HOOVER'S DUE PROCESS RIGHTS:
It is the obligation of this Court to determine "...whether 'the agency [NTSB] ... could fairly and reasonably find the facts that it did.'" Throckmorton v. NTSB, 963 F.2d 441, 444 (D.C.Cir. 1992). Although this is admittedly a somewhat narrow scope of review, this is a case which illustrates - painfully - how necessary the oversight of administrative agencies of the United States by the federal judiciary really is. The Hoover case has had an ugly odor about it from its inception, one that was wiped away by an experienced and thoughtful ALJ, only to have it rekindled by the NTSB. Further, the Hoover case presents this Court with an opportunity to inter one of the most wrong-headed and due process-threatening rules ever fashioned: the so-called rule of the Doe case. In that case the Board ruled that:
"On the issue of credibility of the expert medical witnesses, we find that they are all credible to the extent that the term "credibility" refers to the truthfulness of the witness. The Board's traditional approach to medical expert testimony has not been to evaluate it for the truth or falsity of the statements made because the matter of the veracity of the witness has already been resolved when the witness is evaluated and accepted as an expert in the field of medicine about which he has been called to testify (Emphasis supplied). Once expertise or qualification to give an opinion on the particular medical condition at issue has been established, the Board evaluates the testimony on the basis of logic, depth, and persuasiveness." (Doe, supra p.90)
By creating the monster that is Doe, the Board has either evinced a startling naivet‚ concerning the ready supply of medical witnesses whose opinions are for sale to litigants, or has constructed a thinly-veiled vehicle to arrogate to itself powers which due process has traditionally required to be vested in the trier of fact. To suggest that every doctor who can survive voire dire on the issue of his or her qualifications is ergo a teller of truth is, in every sense of the word, fatuous.
An overview of the genesis of the case presents a disgraceful picture. More than sixty days after an active air show performer exhibits alleged symptoms of infirmity, two FAA inspectors to whom the safety of the public has been in part entrusted finally get around to making a report, trying to be careful to conceal its collusive nature. This conduct was almost surely felonious under federal law. Hoover continued to perform his aerial "act" in this and other countries on some 33 occasions. He submitted to not one but two FAA-designed medical examinations; both teams cleared him to fly. Both teams were overruled by Dr. Pakull, who was present at the trial but declined to take the witness stand to explain his conduct. The FAA had two other experts at the trial - Neurologist John Hastings and Psychologist (and COGSCREEN architect) Gary Kay, who failed to testify. The only medical witness upon whose testimony a revocation could be predicated - Dr. Robert Elliott - was soundly trounced in the credibility department, as follows:
1. He lied to Hoover when he said that the tests he would perform would in no way affect Hoover's right to fly. This false assertion not only vitiated the consent Hoover gave to be examined in the first place, but also voided the further consent he gave when Dr. Elliott announced that the testing would continue for a full eight uninterrupted hours; Hoover - had he been dealt with honestly - could have elected to come back and complete the testing on another day. Such unprofessional conduct is a gross violation of the Canons of Ethics which govern the profession of psychology, and actionable under California Law.
2. Despite his claim at trial that he found Hoover to be unfit for a medical certificate, he never offered that opinion to anyone else until he was solicited to "toughen up" his stance (by telephone) by Dr. Pakull with the help of FAA regular Dr. Richard Gaines. Dr. Elliott contended that he had no duty to the public or the FAA to warn that an unfit airman was performing air shows.
3. He lied when he asserted - repeatedly - that the computer-administered Wisconsin Card Sorting Test he foisted off on Hoover was a valid clinical version, and capitulated only when confronted by a statement from the manufacturer that the only shipments made of the computerized version were plainly labelled "For Research Purposes Only."
4. He admitted to trial judge Mullins that he had never tested Hoover for the purpose of determining his fitness to fly.
It is this witness that the Board has resurrected from the ashes like a Phoenix, shrugging aside the ALJ's findings that he was not credible as if they were so much surplusage. Indeed, as one reads the opinion of the NTSB one is driven to the conclusion that it (1) sounds more in advocacy than in judicial neutrality, and (2) that the exercise in Oklahoma City was a waste of the public's and Mr. Hoover's time and considerable expense.
A second burning issue which deserves attention by this Court is the newly asserted notion that an unproven paper-and-pencil test can supervene all empiricial considerations. Judge Mullins thought - and said - that observations about a pilot's demonstrated ability to fly an aircraft ought to be relevant to a judgment about his medical fitness to fly, a notion which the FAA - for purposes of this case at least - seeks to disavow. The FAA attempts to create perilous - and in our view patently foolish - new rules of the game.
If it is truly the case that we are so completely given over to the machinations of psycological testing that their criteria will govern the day, many of us in the professions are soon to be undone. Judges whose opinions range from consistenly lucid to brilliant will be unseated by unborn demons like COGSCREEN. Lawyers and doctors will be relegated to retirement because some psychologist avers that they are suffering "cognitive impairment". FAA inspectors will be free to pick off pilots they don't like at random, because of claimed difficulties in sorting Wisconsin Cards.
Hoover is entitled to the protection of the Due Process Clause of the Fifth Amendment to the United States Constitution in connection with these proceedings. Specifically, this Court must assess whether the hearing, as impacted by the subsequent reversal of the ALJ's decision by the NTSB, was conducted with "fundamental fairness". If not, Hoover has been denied procedural due process. Watson v. Patterson, 358 F.2d 297,298 (10th Cir.), cert. denied, 385 U.S. 876 (1966).
Due process mandates that the fact-finder, here the ALJ, receive and consider all competent and material evidence before making a final decision. Beck v. Quicktrip Corp., 708 F.2d 532, 536 (10th Cir. 1983), quoting Frank Adam Electric Co. v. Westinghouse Electric & Mfg. Co., 146 F.2d 165, 168 (8th Cir. 1945). Part and parcel of that consideration of all the evidence is an evaluation of the credibility of the witnesses. Beck v. Quicktrip Corp., supra, at 536. Included in this evaluation is an assessment of the believability of expert witnesses. It is fundamental that "the credibility of opinion evidence is for the fact-finder." Huddell v. Levin, 537 F.2d 726, 736 (3rd Cir. 1976), citing Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620 (1944); see also, Dawson v. Chrysler Corp., 630 F.2d 950, 960 (3rd Cir. 1980), cert. denied, 450 U.S. 959 (1981).
The ALJ in the case at bar performed his function according to the dictates of due process; upon hearing and considering all the evidence, the ALJ determined, among other conclusions, that the FAA's experts were not credible. The NTSB, ostensibly relying on its decision in Doe, reversed the ALJ by undermining the factfinder's very function -- the assessment of credibility of the evidence. This action by the NTSB deprived Hoover of due process.
An even more fundamental violation of Hoover's due process rights resulted in the instant case by virtue of the government's interference with Hoover's liberty and property without meeting its burden of proof to revoke the medical certificate. No reasonable factfinder could conclude that the FAA had presented substantial evidence that Hoover was not qualified to hold a medical certificate and no reviewing authority could conclude, particularly giving due weight to the ALJ's assessment of credibility, that the ALJ's determination was arbitrary and capricious. Rather, the NTSB's usurption of the factfinding process to a degree not permitted by law was itself arbitrary and capricious, and denied Hoover due process of law.
It is a well established Board precedent that resolution of a credibility determination is within the exclusive province of the law judge unless made in an arbitrary or capricious manner. Chirino v. NTSB, 849 F.2d 1525, 1529 (D.C. Cir. 1988) As the FAA itself admits, the "Board's policy is not to disturb a credibility finding 'unless there is a compelling reason or the finding was clearly erroneous"; McGraw v. NTSB, 3 N.T.S.B 2345 (1980). Credibility findings are within the exclusive province of the law judge, who alone, is in a position to observe the demeanor of the witnesses, and the "Board is most reluctant to disturb a credibility finding by a [law judge] unless the record reflects a compelling reason for such action."; Coleman v. NTSB, 1 NTSB 229 (1968); Miranda v. NTSB, 866 F.2d 805 (5th Cir. 1989) Stripped to its essentials, this is merely a challenge to the ALJ's credibility assessments, a challenge for which the Board is given a very narrow window of appellate scrutiny. We have made clear "that whether made by jury, judge or agency a determination of credibility is non-reviewable unless there is uncontrovertible documentary evidence or physical fact which contradicts it. As the trier of fact, the law judge is in the best position to make these determinations." Administrator v. Smith, 5 NTSB 1560, 1563 (1986).
Judge Mullins found that Elliott unethically administered an experimental test to Hoover. (A607) The experimental version is useless as an assessment tool. (A568) Thus, either Elliott has been improperly administering a useless diagnostic tool over his years of practice and making diagnoses from it, or, he has purposefully disregarded the fact that the computer version is a mere research vehicle in order to "toughen up" his anti-Hoover position.
In addition, Judge Mullins found that Hoover was not prepared for the time involved with Elliott's testing and did not have sufficient breaks. (A608) Such testing conditions cause poor performance. (A569-70) In this instance, Judge Mullins was not questioning Elliott's opinion, but the reliability of the data from which he formed his opinion. This is the exact analysis of logic, depth, and persuasion that a fact finder is charged with employing, and which the NTSB wrongfully covets.
II. THE PREPONDERANCE OF THE EVIDENCE SUPPORTS THE AFFIRMATION OF JUDGE MULLINS' DECISION
The Board, in reversing the order of Administrative Law Judge Mullins, stated, "...we think all of the law judge's findings are belied by the evidence, and his analysis is clearly deficient." (A980) The Board concluded that the Administrator proved by a preponderance of the evidence that Hoover has a cognitive deficit which makes him unqualified to hold an unrestricted secondclass airman medical certificate. (A985)
Judge Mullins correctly found that the Adminstrator has failed to carry his burden of proof in this case. The Administrator has the burden of showing by a preponderance of the reliable, probative, and substantial evidence that Hoover does not meet the qualifications to hold an airman medical certificate pursuant to FAR 67.15 (d)(2)(ii), 67.15(f)(2), 67.17(d)(2)(ii), and 67.17(f)(2). These sections state that in order to be eligible for a medical certificate, an airman must have:
(d) Mental and neurologic .....
(2) Neurologic ....
(ii) No other convulsive disorder, disturbance of consciousness, or neurologic condition that the Federal Air Surgeon finds -
(a) makes the applicant unable to safely perform the duties or exercise the priviliges of the airman certificate that he holds or for which he is applying; or
(b) may reasonably be expected, within two years after the finding, to make him unable to perform those duties or exercise those privileges;
and the findings are based on the case history and appropriate, qualified, medical judgment relating to the condition involved.
(f) General medical condition ...
(2) No other organic, functional, or structural disease, defect or limitation that the Federal Air Surgeon finds -
(i) makes the applicant unable to safely perform the duties or exercise the privileges of the airman certificate that he holds or for which he is applying; or
(ii) may reasonably be expected within two years after the finding to make him unable to perform those duties or exercise those privileges;
and the findings are based on the case history and appropriate, qualified, medical judgment relating to the condition involved.
A. The Administrator did not establish by a preponderance of the evidence that Hoover has a neurologic or organic, functional or structural disease, defect or limitation
Elliott was the only FAA expert witness who actually examined Hoover. Elliott's final conclusion was, "I can't make a determination as to whether or not there is neuropathology or degenerative disease process present." (A711; 138) Elliott's test results were obtained under conditions which have a deleterious effect on the examinee's performance, and therefore are not reliable.
Dr. Appel testified that even when properly administered, neuropsychological testing is not a reliable indicator of neurologic conditions with low base rates. (A576-81) She summarized a report authored, in part, by Dr. Gary Kay, an FAA consultant who was present but did not testify. Appel testified that the identification of cognitive deficits (a condition with a low base rate in the population tested) by neuropsychological testing is more likely than not to be erroneous. (A580) Of the individuals who are identified as having cognitive deficits, as demonstrated by neuropsychological testing, two out of three do not in fact have such deficits. (A580) Rather, they are so identified as a statistical manifestation of the test. As Appel stated, they are "false alarms." (A579) Appel testified that in individuals over the age of 50, the tests are particularly susceptible to over-calling cognitive deficits. (A580-81) It is much more likely than not that individuals over the age of 50 who are labelled cognitively impaired by the tests are not in fact so impaired. (A576-81) Thus, the Administrator did not establish by a preponderance of the credible evidence that Hoover has a neurologic or organic, functional or structural disease, defect or limitation.
B. The Administrator did not establish by a preponderance of the credible evidence that Hoover suffered a condition that rendered him unable to perform the duties of the second- class airman certificate, or may be reasonably expected to do so within two years.
Elliott, the only FAA expert witness who actually examined Hoover, testified that his evaluation of Hoover was designed to address the question of the existence of neuropathology in Hoover, and not to determine if Hoover was safe to fly. (A32) In fact, Elliott testified that after his testing, and when writing his report, he was not concerned for the safety of Hoover or the public if Hoover continued to fly. (A138-39) Despite these very strange assertions, Elliott testified that poor performance on the battery of tests he administered was evidence sufficient to demonstrate cognitive deficits; and that the presence of these deficits was enough to disqualify Hoover as eligible for an airman's medical certificate.
However, as explained by Appel, "there have been no studies of the relationship between normal cognitive function (as measured by standardized neuropsychological measures or PABs) and actual aviator performance." Mapou, Kay, Rundell, and Temoshok, 63 Aviat. Space Environ, Med. 158 at 162 (1993). There are no studies in which [neuropsychological] test batteries had been validated against actual flight performance of experienced pilots." Id. Even if it were true that the battery administered by Elliott had pilot norms, the lack of proof of any relationship between normal cognitive function (measured by standardized neuropsychological measures or "PABs") and actual aviator performance (see Mapou, Kay et. al. supra) would preclude the use of the battery for a determination of Hoover's fitness to maintain an airman's medical certificate.
Furthermore, if a medical condition does exist, it may have been present for over 20 years. (A554-55; 561). Hoover's ability to fly has not deteriorated in 20 years. (A438; 523) These facts lessen the reliability of neuropsychological data as an indicator of ability to perform. (A283) This evidence demonstrates that the Administrator did not establish by a preponderance of the credible evidence that Hoover has a condition that has rendered him unable to perform the duties of the second class airman certificate, or may reasonably be expect to do so within two years.
III. HOOVER HAS MET THE MEDICAL STANDARDS PRESCRIBED IN THE FEDERAL AVIATION REGULATIONS
The three batteries of testing concluded that Hoover was fit to hold his second class airman certificate. Dr. Garrett O'Connor, who was selected by the FAA and conducted the first battery of tests concluded, "It is my opinion that Mr. Hoover is currently fit to hold a second class medical certificate from a neuropsychological and neuropsychiatric point of view and should therefore be permitted to continue his flight activities." (A703). The results from the UCLA Neuropsychiatric Institute and Hospital (also selected by the FAA), where the second battery was conducted, were: "Therefore, on this basis, we favor a recommendation that reinstates his license on a temporary 3-6 month period during which his current medical and neuropsychological status is closely monitored for potential change. Although such change is unlikely, we are confident that Hoover would appreciate the importance and significance of this recommendation for all parties concerned." (A678). The results of the third battery, as described by, Dr. David E. Johnsen, were: "Mr. Hoover is not suffering from any unusual or significant cognitive dysfunction that would interfere with his ability to function as pilot in command of any aircraft for which he has been appropriately rated by the FAA. Likewise, there are no neuropsychological indications that would contraindicate his maintaining his Second Class Medical Certificate." (A631)
14 C.F.R. 67.11 establishes that an applicant who meets the medical standards prescribed in this part, based on medical examination and evaluation of history and condition is entitled to an appropriate medical certificate. Beins v. United States, 695 F.2d 591, 603 (D.C. Cir. 1982) "Like the court in Duncan, we find the language of entitlement to be significant: If the applicant meets the medical standards, he must be given a certificate - at that point in the certification process the FAA's decision is not discretionary"; Duncan v. United States, 355 F. Supp. 1167, 1169 (D. D.C. 1973) It seems clear, therefore, that any applicant meeting the standards as set forth by the Administrator has a legal right to the certificate; Harr v. United States, 705 F.2d 500, 503 ( D.C. Cir. 1983). Hoover, with a 50 year aviation career, demonstrated his medical fitness to the standards required by the Federal Aviation Regulations year after year, and then an additional three times, yet had his medical certificate revoked by an FAA employee who had never met him.
Under the Fifth Amendment of the United States Constitution, the federal government shall not take a person's life, liberty or property without due process of law. In the present case, the FAA and the NTSB have taken Hoover's in defiance of that precept.
Without his second class airman medical ceritificate, Hoover is not able to perform and pursue his vocation as an air show performer. The United States Supreme Court has held that:
[t]he right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the "liberty" and "property" concepts of the Fifth Amendment...
White v. Franklin, 637 F. Supp. 601, 611 (N.D. Miss. 1986) (citing Greene v. McElroy, 360 U.S. 474, 492, 79 S. Ct. 1400, 1411, 3 L.Ed.2d 1377, 1388 (1959)); see also DiMartini v. Ferrin, 906 F.2d 465, 466 n.3 (9th Cir. 1990).
As outlined above, 14 C.F.R. 67.11 establishes that an applicant who meets the medical standards prescribed in this part, based on medical examination and evaluation of history and condition is entitled to an appropriate medical certificate. Beins at 603. Three sets of tests indicated that Hoover was qualified, yet the FAA revoked his medical certificate. To do so, acting on unsubstantiated reports resulting from collusive efforts and despite the three sets of contrary results, was intentional, arbitrary and capricious.
The NTSB rubber-stamped the FAA's revocation, relied on evidence of unethical and diagnostically worthless testing, and intentionally ignored trial court credibility findings which destroyed the FAA's only critical witness. The NTSB has turned a deaf ear to Hoover, and has listened only to the sirens of the FAA. Both agencies have vigorously eschewed their most important obligation: to guarantee those whom they regulate at least the semblance of a level playing field.
The notion of fair play protected by procedural safeguards that is demanded by the Fifth Amendment to the Constitution precludes an administrative agency from promulgating a regulation affecting individual liberty or a property interest, which the rulemaker may then with impunity ignore or disregard as it sees fit. Montilla v. Immigration and Naturalization Service, 926 F.2d 162, 164 (2d Cir. 1991). Furthermore, "[f]actual determinations by administrative agencies 'are not final and conclusive unless relevantly supported by the record - an administrative order without factual support is without due process.' " Antosh v. Federal Election Commission, 599 F. Supp. 850, 853 (D.D.C. 1984).
In short, in a case where the party with the burden of proof came to court with corrupt evidence to deprive an American Icon of his right to professionally exist, the "government" huddles with itself, and declares victory. In so doing, the FAA and the NTSB have forfeited - in the greater quadrant of the aviation community - what questionable credibility they may have earlier had. If this injustice cannot be set right within this Court's scope of review, all of us who fly are simple targets for those who - like FAA Inspector Boehler - are small-minded, resentful of success in others larger than themselves, and without moral restraint to seek their revenge.
CONCLUSION
It is respectfully submitted that the judgment of the NTSB should be reversed, and the findings and order of the Administrative Law Judge reinstated, whereupon the FAA is required to return Hoover's medical certificate, subject to his being able to qualify regularly at those intervals required by the FAR's.
Respectfully submitted,
By Attorneys for Petitioner,
BAILEY, FISHMAN, FREEMAN
& FERRIN
F. Lee Bailey
Toni Marie Kennedy
1400 Centrepark Boulevard
Suite 909
West Palm Beach, FL 33401
YODICE ASSOCIATES
John S. Yodice
Ronald D. Golden
500 E Street S.W
Suite 930
Washington, D.C. 20024
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