May 1, 1994
By John S. Yodice
AOPA Counsel John S. Yodice also maintains an independent aviation law practice. One of his recent clients was air-show pilot Bob Hoover. In this story, Yodice provides an insider's view how the FAA's powerful enforcement system treated Hoover — Ed.
Bob Hoover is one of the greatest pilots and performers of our time. Hoover's career in aviation has spanned more than 50 years — learning to fly at age 16, flying 59 missions as a combat fighter pilot in World War II, flying as a test pilot for the military and later as a civilian, and, until recently, flying as an air-show pilot who has thrilled hundreds of thousands with his remarkable flying skills. This story is about how his flying career has been cut short by two federal bureaucracies under circumstances that dramatically illustrate the unfairness of the FAA's medical certification program and the uncertainty of the National Transportation Safety Board's appeal process.
As stories go, this one has its heroes and villains and a dastardly plot, but not a happy ending. The story has a message for us as pilots and maybe even a call to action.
This chapter in Hoover's life begins with two FAA inspectors. I should first point out that there are many good FAA inspectors who are sympathetic to Hoover's plight, and who don't like the bad light this episode sheds on the FAA they proudly serve. The two inspectors who precipitated Hoover's troubles were among those assigned to the Aerospace America Air Show held in Oklahoma City in June 1992. They decided that Hoover's performance at the air show was sub-par, that he didn't look well, and that he should be reported to the FAA medicos. They make no explanation in the record why they waited more than two months to make their reports, or why they didn't seek some corroboration of their observations from the many persons who socialized with Hoover at the air show or the thousands who watched his performance.
Fortunately, Oklahoma's television Channel 5 filmed Hoover's performance. The films, which were viewed at the hearing of this case, don't bear out the inspectors' reports. Hoover flew his usual spectacular performance. The other air-show performers, who saw a lot more of Hoover than did the inspectors, testified under oath that he looked fine — alert and healthy and nothing unusual — and that his performance was not only great, but unchanged from how he has flown for years.
At the hearing, the intentions of these inspectors became more clear. It turns out that they were overheard hatching their plot by another inspector who had to be subpoenaed to testify over the vociferous objections and obstructions of the FAA lawyers. He testified that one of the reporting inspectors admitted to him that he was out to get Hoover. He also testified, reluctantly, that one day as he passed an office, he overheard one of the inspectors telling the other that they should write their reports so that it wouldn't look like they were prepared together.
As a result of the inspectors' reports, the FAA demanded that Hoover undergo an exhaustive and expensive psychiatric evaluation by doctors of the FAA's choosing. I question whether this was a reasonable basis to ask for a reexamination of Hoover's medical qualification. The FAA didn't even bother to verify the observations of the inspectors. But that's not the worst.
Hoover, without complaint and at his own expense, went through the FAA's testing and got what he thought was a clean bill of health — really, what any reasonable person would have thought was a clean bill of health. The FAA sent him to a psychiatrist in the Los Angeles area, who conducted "a comprehensive clinical evaluation" including extensive testing by a psychologist (more about this later) and a neurologist. The psychiatrist selected by the FAA, after reviewing the results of all of the testing, concluded: "It is my opinion that Mr. Robert Hoover is currently fit to hold a second class medical certificate from a neuropsychological and a neuropsychiatric point of view and should therefore be permitted to continue his flight activities."
Enter Dr. Bart Pakull, the FAA's chief psychiatrist. He didn't like this opinion. He referred the test results to a psychologist who has been a consultant to the FAA for 10 or 12 years and who has known Dr. Pakull for 15 years. Without personally examining Hoover, this psychologist gave the opinion that Dr. Pakull was obviously looking for. Then Dr. Pakull, along with the FAA federal air surgeon, got on the telephone to Hoover and his doctor and told them that Hoover was not medically qualified. Hoover was told to surrender his medical certificate to his doctor. Hoover thought that he had to, and so he did.
Hoover reacted as many have. A pilot believes that he or she must give up a pilot or medical certificate on FAA demand (wrong!), and the FAA covers its tracks by considering it to be a voluntary surrender. How involuntary it is becomes obvious when the pilot tries to get it back. Beware!
Hoover was flabbergasted at the FAA's position. He felt fine. The doctors said that he was fine. By then, he had flown another 33 performances without a hitch since the Oklahoma show. He asked for a second chance, and the FAA sent him to the UCLA Neuropsychiatric Institute, which, after more extensive testing, gave Hoover another favorable report. The institute concluded: "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...."
The FAA again refused to reinstate his certificate. Dr. Pakull, following his earlier practice, sent the institute's work to his psychologist associate, who dutifully disagreed with the institute's conclusion.
Once again, the FAA refused to follow a favorable recommendation from doctors of the FAA's own choosing. To show how far it had dug in its heels, the FAA even refused to issue a certificate limited to 3- to 6- month follow ups.
It was at this time that I became involved. I received a call from famed attorney F. Lee Bailey, a longtime friend of Hoover's and mine, who recounted to me this tale of horror. Bailey wanted to fight. I found myself in the unpleasantly familiar position of trying to explain to a reasonable person the unreasonable power and advantage that the FAA has in medical cases and how ineffective the appeal rights to the NTSB have been. Nevertheless, I agreed to try to help, and I undertook informal discussions with the FAA doctors (who always had an FAA lawyer in attendance). Dr. Pakull never attended and remained hidden behind the scenes throughout this process. The talks went nowhere.
At the Reno air races last year, Hoover, through a mutual acquaintance, met Brent Hisey, a neurosurgeon and a flight surgeon with a fighter squadron at Tinker Air Force Base in Oklahoma. Dr. Hisey didn't know Hoover, though he had seen him perform over the years. Hoover explained his problem with the FAA and asked if Dr. Hisey would review his case and offer an opinion about his ability to safely fly an aircraft. Dr. Hisey agreed on condition that Hoover submit to another complete examination. He warned Hoover that he would be thorough in his examination and forthright in his opinion.
Dr. Hisey was perfectly suited to the task. He is an active pilot flying a variety of aircraft including a Pitts Special, a P-51 Mustang, and the F-16 Falcon. He also is active in certifying pilots as medically fit to fly the F-16, seeing some 20 pilots a month. And he has no official connection to the FAA.
Hoover went through a third series of exams with Dr. Hisey and a clinical psychologist named David Johnsen, also a pilot. The doctors concluded that Hoover was qualified for his medical certificate. The test results were given to the FAA. The FAA would not budge.
We were frustrated. Bailey was spoiling to litigate. On behalf of Hoover, we demanded a return of Hoover's medical certificate. The FAA, recognizing that it would wind up in court if it refused, responded by issuing an emergency order of revocation of the certificate. We appealed the order to the NTSB, and a hearing was held before Administrative Law Judge William R. Mullins. By then, the FAA had hired more doctors to support its case, none of whom had personally examined Hoover. We introduced the testimony of Drs. Hisey and Johnsen as well as a renowned neuropsychologist. There was plenty of medical evidence on both sides. It came down to which side to believe.
After sifting through all of the medical evidence and testimony that the four-day trial generated, Judge Mullins decided to believe Hoover's doctors over the FAA doctors. Mullins ordered the FAA to return the medical certificate. The FAA refused and appealed the order to the five-member NTSB.
The five-member board backed the FAA. After all Hoover had been through in establishing his medical qualification three times, and proving it before a judge, the NTSB reversed Mullins and sustained the FAA's revocation of Hoover's medical certificate.
It came as a disappointment but no surprise. I have been following the board's decisions for years, and the tendency is for the board to rubber-stamp the FAA. Of course, that's not what Congress intended when it gave us the NTSB to act as an impartial adjudicator. That's not what the Federal Aviation Act says in spelling out our appeal rights. But in case after case, the board has overruled its own judges in decisions that essentially say "the pilot loses." A General Accounting Office review of 235 cases in 1992 shows that airmen won only 14 percent of the cases before the NTSB law judges and only 8 percent on appeal to the full board. The board doesn't voluntarily publish such embarrassing statistics.
A fundamental legal precept holds that an appeals body should leave it to the trial judge to determine which witnesses to believe. It's a common-sense rule because judges, through their experience, are able to tell pretty well which witnesses on the stand are lying, or, more frequently, who is shading their testimony. In the Hoover case, Mullins resolved the conflicting evidence by finding the Hoover witnesses to be more credible than the FAA witnesses.
Another fundamental precept that was bent to the breaking point is that a trial judge, in assessing credibility, may consider a witness's truthfulness and his or her partiality, relationships, or motives that reasonably may produce a bias.
The FAA produced only one witness who personally examined Hoover. He is Dr. Robert Elliot, a neuropsychologist, who participated in the first round of Hoover's examinations. The judge had several points on which to judge Dr. Elliot's credibility.
Point one: Before administering the tests, Dr. Elliot assured Hoover that the testing would not have anything to do with losing his certificate. Dr. Elliot admitted in sworn testimony that he gave Hoover that assurance. Yet Dr. Elliot appeared and testified against Hoover.
Point two: One of the tests administered to Hoover was a version of a psychological test that is marketed for use only as a research tool. It should not be used for clinical decisions. Dr. Elliot insisted under oath that it was not a research version. Then Bailey produced a fax from the distributor saying that the distributor had never shipped anything but a research version.
Dr. Elliot also examined Hoover using an experimental test being developed in part by Dr. Elliot and being pushed by the FAA. This test has not yet been marketed and should not be used for certification decisions. The law judge wisely excluded this test from evidence.
Point three: At the conclusion of his examination back in October 1992, Dr. Elliot produced a lengthy eight-page, single-space report, followed by pages of test results, in which he never said that Hoover was unqualified. He merely recommended that Hoover be referred to a neurologist, which was done. After all of the testing, the psychiatrist in charge of the evaluation (and to whom Dr. Elliot sent his report) said Hoover was qualified. It was not until some time later that, inexplicitly, Dr. Elliot expressed the opinion that Hoover was not qualified.
Point four: Dr. Elliot earns $50,000 a year part-time assessing pilots for the FAA. He charged $1,700 to examine Hoover. In other words, he has an ongoing financial relationship with the FAA.
The board said that these things should not have been considered by Mullins in assessing Dr. Elliot's credibility. The board made this surprising statement: "We [the board] do not evaluate medical expert testimony for its truth or falsity, because the matter of the expert medical witness' veracity has already been resolved when the witness is evaluated and accepted as an expert in the field of medicine about which he or she has been called to testify." In other words, a judge must accept the testimony of a medical witness even if he or she is a liar and has a bias in favor of one side, so long as the witness is qualified as a medical expert. The board also criticized the judge for considering that Dr. Elliot had ongoing monetary interests with the FAA. The board could not be more wrong. It is indisputable that such a monetary interest is precisely what a judge may consider. The judge doesn't have to consider it, but he may, and Mullins did. It is not the function of an appellate body to second-guess the trier of fact in deciding which witnesses to believe, unless the trier of the facts is clearly wrong.
The FAA introduced the testimony of other doctors who never personally examined Hoover. All of Hoover's medical witnesses personally examined him. Should a judge be allowed to take that into consideration in evaluating the credibility of the witnesses? Remember Dr. Pakull's psychologist friend? The FAA called him as a witness. This created an ethical dilemma. The code of ethics of psychologists says that a psychologist should not provide a report or testify about the psychological characteristics of an individual unless the psychologist conducted an examination of the individual adequate to support the statements or conclusions. Of course, he never examined Hoover. This didn't bother the board at all.
I want to be careful to distinguish the NTSB as an institution from the five members who run it. I believe that the NTSB is a good institution. The concept of an independent agency to act as an appellate court to judge FAA certificate actions is a good one. Many good people work in the NTSB including Judge Mullins and other judges. The whole office of administrative law judges is accommodating and hard-working for airmen and their lawyers as well as the FAA and its lawyers.
But the five-member board that runs the NTSB is different from the institution. The members of the NTSB board are appointed by the President and confirmed by the Senate. It is the board that runs the NTSB, the board that controls the judges — and can create a climate that drives off good judges and dispirits the ones holding on, and it is the board that serves as the final appeals body. They should have qualifications for the appellate function that go beyond political connections.
This account may be a particularly sad chapter in the life of Hoover, but it has ominous implications for all pilots subject to FAA medical certification who must look to the NTSB to protect their rights.
Despite losing his FAA medical certificate, Bob Hoover still is performing his unique precision aerobatic show — in Australia. Hoover was examined in March by an Australian physician and was issued a medical certificate there. He subsequently received an Australian commercial pilot license and, during a two-week tour of the country, performed 17 low-level aerobatic demonstrations in his Shrike Commander and North American T-28 — Ed.
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