5TH CIRCUIT COURT OF APPEALS CASTRATES "IF YOU SEE SOMETHING, SAY SOMETHING"
By Capt Mark Estabrook (RET)
(NEW ORLEANS) 30JUN2020 -- In a 12-page 5th Circuit Federal Court of Appeals decision, the Court gutted American workers' reliance on the Department of Homeland Security's toothless "if you see something, say something" campaign. In tag-team fashion, I was bent over a barrel by each succeeding organization in the AIR-21 process: OSHA, the ALJ, ARB, Secretary of Labor and the DOJ (5th Circuit), until finally, I do not even recognize the original facts of the case anymore.
The 5th Circuit was so proud of their decision that they posted "pursuant to the 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except in the limited
circumstances set forth in 5TH CIR. R. 47.5.4" at the bottom of the first page. In a striking, somewhat vindictive beatdown, the Court gave government intelligence agencies and the FAA omnipotent, unchallengeable powers, as if to say "how dare you" report the accepted practice of airlines publishing "real time tracking" data on the Internet.
Although I am not a lawyer, and cannot give legal advice, I would caution all Americans to think twice before participating in the "if you see something, say something" program. The DHS ad campaign itself does not prescribe sufficient protection for employees. Companies will silence you. Al-Qaeda is celebrating this decision and will marvel at the infidels' naive incapability to defend themselves.
Be safe. Do not rely upon your government to protect you.
In August 2013, FedEx Airbus Captain Mark Estabrook, a safety and security advocate throughout his career, communicated to flight management that he wished to discuss security in a telephone call with CEO Fred Smith. His Chief Pilot Bill McDonald attempted to fire him by first accusing him of having had a stroke, then corporate security accusing him of being mentally ill. While violating the pilots' collective bargaining contract, the flight and legal department sent him to undergo a psychiatric examination or face termination for insubordination. Thus began seven years of federal litigation. FedEx responded by lying to an OSHA federal investigator, denying any knowledge of Captain Estabrook's prior union security work after 9-11, lying in court discovery documents, shifting their rationales for actions taken, and withholding the identity of a major decision maker to name but a few dishonorable acts. Administrative Law Judge Scott R. Morris shockingly ruled in favor of FedEx. Estabrook appealed up through the Department of Labor and is now at the United States Court of Appeals for the 5th Circuit in New Orleans. The Solicitor General of the DOL has asked the 5th Circuit to decide this case in "Star Chamber" fashion, by denying Estabrook's request for a public hearing. Every American worker should know that all whistleblowers will be affected by this decision. Sending citizens to psychiatrists for speaking up about national security or safety policies is not the American way but it is the Soviet way. For more information on this worldwide problem of psychiatric warfare, see: Mental Heath as a Weapon: Whistleblower Retaliation and Normative Violence. Kenny, K., Fotaki, M. & Scriver, S. J Bus Ethics (2019) 160: 801, NOV2019.
By Captain Mark Estabrook (RET) 27FEB2020
In a stunning rebuke to all American whistleblowers, Kate S. O'Scannlain, Solicitor General of the Department of Labor, submitted to the United States Court of Appeals for the 5th Circuit (DOJ) on 30JAN2020 that pilots reporting security violations are NOT entitled to AIR-21 whistleblower protection when companies order them to psychiatric examination. Their logic is the FAA alone should interpret its own security regulations. That is not how the U.S. Supreme Court has ruled on such issues in the past.
The Department of Labor is apparently codifying the dark "punitive psychiatry" from the Soviet era. This is a reemerging practice that is growing around the world because humankind does not learn from history.
In MARK ESTABROOK v. FEDERAL EXPRESS CORPORATION, I made the mistake of holding my government and employer to their legal obligation to "prevent and deter" the carriage of bombs. I am an Air Force veteran that used to chase Soviet Bear bombers in the North Atlantic. For the past seven years I have been chasing Soviet ideologues in my own government.
In case you are wondering, there was no psychiatric episode or history involved. In my case, FedEx simply wanted to silence me because I "knew too much." It is in the transcripts if you want to look it up.
Believe it or not, there is a specific Federal Aviation Administration regulation that orders airlines to prevent and deter the carriage of bombs, as if common sense was not enough incentive: CFR § 1544.205 Acceptance and screening of cargo. (a) Preventing or deterring the carriage of any explosive or incendiary. Since I flew for FedEx and they are in the box delivery business, my fellow pilots, employees, citizens and I have an interest in our airplanes not blowing up and crashing to the ground over large, congested cities.
In the wee hours of 04AUG2013, I wrote my chief pilot, Captain Bill McDonald, an email asking if he could arrange a telephone call with Fred Smith, founder and CEO of Federal Express Corporation. There was information I had stumbled across on the internet which detailed the "printer bomb" incidents of 2010.
Al-Qaeda successfully placed one bomb each on separate FedEx and UPS aircraft operating in the Middle East, which were ultimately retrieved and disarmed due to Saudi intelligence obtained through a double-agent that escaped a cell in Yemen. Inside the cell was Ibrahim al-Asiri, who built the two bombs and placed them inside printer cartridges headed for America. For that, and other macabre acts, he earned a fatal drone strike kiss from Trump in 2017.
Approximately a month before the actual shipment of the printer bombs, al-Asiri shipped several "test" boxes on FedEx and UPS to a closed, former synagogue in Chicago. This is what caught my eye. He was observing the ATC real time tracking data published by third parties on the internet. Why did he go to the trouble? Every airline publishes its flight schedule ahead of time with the government. But what does the flight really do? Where does it stop? How long is it on the ground, but more importantly, when and where on its flight track would a detonation attract the most worldwide attention? The answer: the northeast corridor of the United States. Al-Asiri wanted to control the time of detonation to his maximum advantage.
This story did not start in 2013. In the minutes and hours after the first aircraft hit the WTC on 9-11, I was writing and publishing an editorial on AirlinePilots.com which advocated the arming of airline pilots and the redesign of cockpit doors and national security policies. To say the least, it was controversial because it also called for a new national policy that pilots never open their door at any time in flight, for any reason, including threats to flight attendants. It got picked up by a variety of newspapers, radio and TV stations around the world and caught the attention of ALPA, the Fedex Pilots Association (FPA) and the UPS pilots IPA President Bob Miller.
FPA President Dave Webb soon contacted me and asked if I would chair a new union security committee. He learned of my prior military experience as an AWACS aircraft commander in the Persian Gulf during the Iran-Iraq War after I had him over for dinner several years before. More recently, he became acutely aware of my recent editorial promoting the arming of pilots and redesigning cockpit bulkheads. Dave was not, shall I say, as enthused as I was about arming pilots with guns. According to him, ALPA's President Duane Woerth, wanted me "reigned in" as soon as possible. I liked Duane, as well as Webb, but politics often requires leaders to stick their finger up in the air to determine which way the wind is blowing.
I agreed to his request knowing he and I were not exactly on the same page.
One of the first things Dave asked me to do was join an ad-hoc committee of special interest groups formed by Secretary of Transportation Norm Mineta to address how we safely resume airline operations after a national security grounding of our nation's entire aviation fleet.
"Just listen. Don't say a word," he said.
I did not participate in the first day of the 150+ person teleconference. By the end of that previous day they decided caterers and aircraft cleaners were going to search aircraft for weapons and bombs prior to each flight. By the time I joined the call on the second day, the narrator was asking if there was any opposition to the previous day's decision.
I couldn't believe how incredibly stupid this idea was. If you are a politician and you wish to diminish the input of special interest groups, or keep them busy, the first thing you do is establish a committee. I was biting my tongue but couldn't take it another microsecond.
"This is Captain Estabrook in Memphis," I said. "Who do you think will be the ones placing weapons on the airplanes?"
There was a long pause.
"Well, I guess we can scratch that one off the list," the moderator said.
I spent the next several days on the teleconference but quickly asked to be relieved. It was clear the White House was keeping the committee busy while the real decisions were being made by the JCS, NSC and the President. Before I left the teleconference, I remember a representative of the flight attendants challenged my public statements on radio and television about keeping the cockpit door shut "no matter what."
"Does that mean you are going to keep the cockpit door shut even if there is a box cutter at our throat?" she asked sincerely and emotionally.
"That is exactly what it means," I said. I was not a popular fellow.
The days of flight attendants relying on swashbuckler captains with scarves blowing in the wind were over. I grew up in an airline family. It did not make me feel better to tell her the cockpit door must never be opened in flight ever again. It was time for me to move on to more immediate issues.
My primary concerns during this era's focus on terrorism were both the threat of hijacking and bombs. There were many things we needed to get done in acknowledgment of those threats. In the government, military and media it was frequently stated that "we were at war with al-Qaeda."
Even before my stint in the Air Force, I learned how valuable aircraft tracking data was to our national defense. It made little sense to me that FedEx was publishing both real time aircraft tracking data and near real time package tracking data on the internet. To understand the significance of this data, one only needs to turn to WWII history to understand a technological equivalent.
In 1941, the British seized an Enigma machine on board a German submarine before its captured crew could finish the scuttling of the sub. The code books for the Enigma machine were seized and gave Alan Turing at Benchley Park the keys to all of the Third Reich's encrypted radio messages. This intelligence permitted the British to reroute convoys of Allied ships around German U-boat wolf packs in the Atlantic. Sub commanders were transmitting weather reports each time they surfaced, along with their positions. This achievement is often credited with the winning of the war. This is but one example of having hard intelligence on where your enemy is.
Similarly, both the British and the Germans each used their separate versions of radar. Britain is often credited with exploiting its radar more effectively when compared to Germany. The defensive use of radar during the Battle of Britain in 1940 supports this notion as their fighter resources were limited and extremely strained. Scholars have often pointed to Goering's failure to continue the targeting of airfields, while the British used chaff and jammers very effectively against German radar systems during their bombing raids.
In the present case, FedEx jammed and chaffed the truth from the very beginning. The Administrative Law Judge (ALJ), Scott R. Morris, listened to my truthful testimony and never once challenged my veracity in his comments or decision.
FedEx, however, shifted rationales, perjured themselves, lied to a federal investigator, withheld the identification and testimony of relevant decision maker Jim Bowman (VP of Flight Operations), made false interrogatory responses, resisted discovery, refused to hand over emails, and directed physicians to challenge my sanity. The ALJ ignored my identification of their chaff and jamming, and instead plucked FedEx's low hanging and poisoned fruit as the basis for his ruling against me. The only comparison I can make of the process is Franz Kafka's The Trial.
Throughout the end of 2001 and the first half of 2002, I attempted on more than one occasion to communicate our vulnerabilities from the publishing of real time tracking data on the internet to FedEx management and the U.S. government. In a letter dated 20SEP2001, just nine days after 9-11, and under Dave Webb's signature, the FPA informed Captain Bruce Cheever, our then VP of Flight Operations and FAA Administrator Jane Garvey of our concerns about publishing this tracking data on the internet. The letter went unanswered.
On 25SEP2001 Captain Duane Woerth, President, Air Line Pilots Association, appeared before Congress and reversed his earlier position on arming airline pilots:
"The Air Line Pilots Association has reprioritized [emph. added] our security recommendations and have determined that creating a program to allow specially trained and screened pilots to carry weapons in the cockpit must be a top priority. Specifically ALPA urges Congress to authorize a new program to train volunteer air line pilots to carry firearms in the cockpit to secure the nerve center of the aircraft and to get the aircraft on the ground safely if faced with a terrorist threat."
This was politically risky for Woerth. He had no data on how much national membership support he had on this hot potato. It was only two weeks after the attacks. It was not a gut instinct for him like it was for me, but I was pleased.
Bob Miller, then President of the Independent Pilots Association, the collective bargaining representative of the UPS pilots, kept in touch with me. Within several weeks after 9-11, he called and asked if I wanted to meet with Jane Garvey, the FAA Administrator, to discuss our mutual security concerns in the cargo sector. Bob knew the right people.
Administrator Garvey sat at her desk like a deer trapped in the headlights. She listened as Bob and I went down our list of national aviation security weaknesses from a cargo perspective. I will not speak today of what Bob's concerns were as several decades have passed. I can only speak to what I was advancing: arming pilots, cessation of publishing real time tracking on the internet, ceasing employee jumpseating in our cockpits and the redesign of cockpit doors were at the top of my list.
"Thank you for coming," she said. "I will be in touch."
I never heard from her again.
Chief Pilot of our flight operations on 9-11 was Captain Jack Lewis. He was doing his best to keep communications open between the pilots and management. Unfortunately, the aristocracy would not give him any authority to negotiate anything about security. Nor did he have the in-depth access to company documents to sufficiently brief us at the depth we were requesting. FedEx was not tapping the vast reservoir of military experience within its pilot group. These were men and women with prior Top Secret security clearances fighting some very bad people. These were pilots who were now moving freight for Fred and country. To the company, we were just a pain in the ass and an obstacle between their shareholders and higher profits.
On 18OCT2001, just five weeks after 9-11, I wrote a letter to Lewis presenting twenty four areas of security concern. Included in this group was, you guessed it, the publishing of "real time tracking data." Some of these topics were submitted by the crew force to me in emails, phone calls and meetings in the crew lounge. There was no response from Jack or the company. In frustration, Jack told me "his hands were tied."
John Otto, a retired FBI Director and former head of airline security at Delta, responded quickly to my request for him to brief our union representatives. After complimenting me for my sleuthing (I tracked him down on the internet), he came out of retirement and flew to Memphis to educate us about his prior experiences in the FBI and airline security. He agreed to be videotaped and it is loaded here for your review (please watch the whole thing).
Director Otto emphasized the intelligence and creativity of our enemies, management's collection of information from its employees and our duty to report every security incident to both law enforcement and management. John also focused on the importance of bilateral dissemination, or sharing, of information from the top down.
His advice resonated with me as it struck deep chords in my own life experience. While the union bought most of my trips, I tried to keep up with my rapidly increasing security duties and challenges. All the while I thought about what Otto said. His advice was common sense stuff that FedEx refused to negotiate.
Wilson Center for Public Research, Inc., released its survey results of airline pilots' overwhelming support for arming pilots on 10FEB2002.
On 13FEB2002, in my capacity as the FPA Security Committee Chairman, I filed our pilots' official response to the FAA's Docket Number 2001-11229, Firearms, Less-Than-Lethal-Weapons, and Emergency Services on Commercial Airline Flights with the Wilson Center survey results firmly supporting my position. My support of weaponizing the cockpit was not surprising considering my editorial on 9-11. Webb ran into me in the union office hallway shortly thereafter, and made it clear I would "never see FedEx pilots carrying guns in the cockpit." I told him he "may be right, but that doesn't absolve me of my duty to represent their best interests in the meantime."
My attempts to communicate with our FedEx security director fell on deaf ears until National Public Radio (NPR) contacted Captain Kevin Scheiterlein, our union communications director, with a request for an interview.
On 17FEB2002, Kevin and I spent around an hour in a Memphis studio answering questions from an NPR reporter about cargo security. That interview was later cut to seconds, but was long enough to raise the ire of Bill Henrikson, VP of FedEx security.
There were a number of us pilots in my security committee office when his call came through the morning after the NPR broadcast aired. When I answered, it seemed to me he was screaming even before I picked up the receiver. He was so loud I put him on speaker phone. I shared the office with various committees and they froze as they listened. He hung up on me before I could respond.
"What the fuck was that?" one of them demanded in terror as if Henrikson's reaction was my fault.
I smiled at him and recalled a famous line from Cool Hand Luke: "What we've got here is a failure to communicate!" He stormed out of the office and marched into Dave Webb's office like a school child telling a teacher in the lounge "Estabrook is making management mad!"
The FPA was riddled, "co-opted" as it were, with anti-union pilots. Typically, there were retired military pilots seeking pro-management nirvana; willing to cave in on the slightest issue, even on the topic of Post 9-11 security. Some coveted management positions for themselves and would pee in their panties if Fred knew their names. I had no stomach for pilots only pretending to have a spine.
Within a day or two management agreed to a meeting with Webb and me. What a surprise. It was mostly both sides sniffing each other's ass. Henrikson wanted an agreement with the pilots that jumpseating would resume for all company employees. 9-11 changed all of that and the pilots demanded to keep non-essential personnel off board. Jumpseating was a valuable employment benefit/inducement and a way to keep wages down. Management wanted it back in operation ASAP. He asked me to meet with Todd Ondra, his security assistant, so he could explain current security background checks for all employees. We then pressed our concerns and got no reaction or response.
When I was leaving the meeting with Henrikson, I asked him "do you want a copy of an al-Qaeda training manual?"
"You have one?" he asked incredulously.
"Yes. It's already translated," I said. "I'll send it to you when I get back to the office."
I wanted to extend an olive branch but beyond that, I could tell Security wanted to change absolutely nothing after 9-11. Giving him a copy of the training manual was my way of reminding him there were real bad people out there who want to do us harm. It bore fruit when he and I began directly communicating with each other, but the background check briefing from Ondra was pointless. There wasn't any briefing that could convince the pilot group to resume employee jumpseating.
During the spring of 2002, I responded on behalf of the Fedex pilots to a series of security topics posted by the Department of Transportation. One of them concerned a public comment request on the security considerations of a redesign in cockpits. On 18MAR2002, I agreed with some of Fred Smith's previous public statements on aviation security made after 9-11. Unfortunately, Fred apparently made his suggestions for improvements in aviation security such that they be accomplished at other airlines, not his. At the time I remember my confusion because Fred bravely served our country in Vietnam. He understood violence happens in the world. He is a true leader and innovator. I was proud to work for him, but Fred is not perfect. To his credit, I say these things in hindsight. He is a man who is not afraid to make decisions in real time. There is a big difference.
I concluded my written response to DOT by advocating for such things as the arming of both cargo and passenger pilots, building "double cockpit doors," installing video cameras (so the Captain can surveil activity in the cabin area) and defining captain's authority while limiting liability during any response to a hijacking. Fred and his league of attorneys wanted only one thing: the resumption of company-wide employee jumpseating. He ceded little with respect to our needs as captains, the majority of which were former military pilots who were extremely loyal to him. But we had our limits. We were very familiar with how oligarchy will, from time to time, blow smoke up our ass.
On April 9, 2002, FPA President David Webb, Negotiating Committee Chairman Bob Cheminti, FPA lawyer Darrel Green, other FPA representatives and I met with William J. Logue, FedEx Express Senior VP of Air-Ground Freight Services (AGFS) and other company officials, including Todd Ondra and Bill Henrikson. Logue wrote Captain Webb on April 10, 2002 about that meeting, under the SUBJECT: Jumpesat/Security Issues, and cc'd Todd Ondra and me as well as others. Shortly before that meeting, Chimenti and Webb directed me to reduce the 24 items I wrote to Chief Pilot Lewis on 18OCT2001 to a total of 9 topics before we attended the meeting with Logue. Of course, all of the 24 items were important, but politics forced concessions.
Real time aircraft and package tracking survived that edit. When Logue called on me to brief the group on the topic, I asked everyone in the room to raise their hands "if they thought we and the country were at war with al-Qaeda."
Everyone in the room, and I mean everyone, raised their hands.
"Keep your hand up if you think Winston Churchill would have published the exact whereabouts for each of his aircraft, (including current position, heading, altitude and airspeed) 24 hours per day and make that intelligence immediately available to the Luftwaffe during WWII?"
Nobody kept their hand in the air. Nobody said a word. Logue knew I had made my point with two simple questions.
"Captain Estabrook, that's all fine and good but real time tracking is part of our brand and it is often cited in our marketing studies as one of the primary reasons our customers choose our service. Marketing trumps security! Next item."
Really? Seriously? Yes.
There wasn't much accomplished at that meeting, except I suggested we create an electronic recall system which would alert the pilot to a national emergency. This would permit the immediate grounding of our international fleet to the closest available airport. Logue directed somebody in flight management to come up with such a procedure. This plan was straight out of John Otto's presentation recommending two-way communication between pilots and management.
In conclusion, Logue wrote that a change in jumpseating procedures would move employee baggage out of the belly of the airplane and back to an accessible area on the main deck behind the 9-G net. It shocked me. I was totally unaware these discussions were going on. As I learned later, this was purposely negotiated without my agreement or participation, and involved Dave Webb and the FPA Safety Committee. I had been politically eliminated by Webb and the Safety Committee. The handwriting was on the wall for me.
Logue followed that announcement with an understanding that the company will hand-search pilot luggage if the departing cargo ramp did not have an x-ray machine. This kind of thinking gave rise to moving pilots over to the threat column, and I was opposed to this philosophy. All that did was undermine "captain's authority" in spite of the fact that the company was relying on the Captain to be the inflight security coordinator. It all fits with the politically correct notion that all employees, regardless of whether they can legally fly an airplane or not, would be treated exactly the same because we were all "team members."
This kind of thinking subtracts pure logic from any post 9-11 security debate. Every jumpseater with access to the cockpit can use the crash ax to attack and kill the flight crew. So it doesn't really matter if a pilot is carrying a pocket knife in his carryon flight bag or not. You have to trust us. You have no other choice. Oh, you can drive your package to Pittsburg if you want, but can you do it by 10:30AM tomorrow morning?
Even with electronic locks and access codes, the door is breached with every visit to the back. Without a double cockpit door design, every jumpseater has access to the crash axe when a pilot goes to the back to visit the lavatory or access catering. They don't even have to smuggle weapons on board.
Cargo aircraft are actually at higher risk without passengers when carrying jumpseaters and stowaways, who are free to pursue terrorism when there is no passenger interdiction possible. Many thought I was against other employees sharing our aircraft to fly all over the world. Actually, all I was concerned about was reducing the risk wherever I could find it. Since the continuance of employee jumseating did not reduce our security vulnerabilities, I advocated for abandoning those benefits (with the exception of mechanics). Non-pilot jumpseaters were not essential to successful accomplishment of the mission to safely fly from Point A to Point B.
The company challenged my view of the situation when they recounted the violent attempted hijacking of FedEx Flight 705 on 07APR1994. A member of the pilot group, DC-10 Flight Engineer Auburn Calloway, violently attempted to takeover the flight. Henrikson purposely reminded me at our first meeting, to which Webb aptly replied "yeah, didn't you do a background check on him?"
The importance of FedEx Flight 705 cannot be understated. I am convinced Mohamed Mohamed el-Amir Awad el-Sayed Atta studied Auburn Calloway's attack on FedEx pilots. It became a template for the Muslim attacks on the World Trade Center and the wars that followed. I knew Calloway. I trained with him twice as simulator partners, once as new hires in the B-727, and then again as flight engineers in the DC-10. My wife and I had him over for dinner. He defeated me in two separate games of chess in short order. The FBI interviewed me for over six hours after the incident.
Captain Joe Depete, our ALPA MEC Chairman at the time, called me at home the day of the incident and asked me to go to the hospital and protect the families from the media. I saw their horrific injuries as I stood at the foot of their beds. They are true heroes who suffered greatly. I was asked to testify in the federal trial of Calloway. I knew intimate details of the incident.
Bill Henrikson and Todd Ondra, followed by Bill Logue, advanced the company's catatonic fixation on background checks as solving all of our security problems. FBI Director John Otto explained to us that background checks can be beaten. Calloway had been fired at Flying Tigers, then applied and hired at FedEx. Henrikson was trying to rub our noses in Flight 705 just because Calloway was a pilot. He was just as much an enemy of society as al-Queda. We should never doubt the enemy's intelligence or creative ways. Doing so is at our nation's peril. Documents can be counterfeited, just as Otto briefed us.
Mohamed Mohamed el-Amir Awad el-Sayed Atta had a counterfeited pilot ID badge that he used to jumpseat around the U.S. prior to 9-11. He was the ringleader of the hijackers on the four aircraft who killed many people on 9-11, inflicted first responders with degenerative diseases and started our long, retaliative war in Afghanistan with many dead and injured. In other words, background checks were not and are not the "end all" solution to terrorism and our security vulnerabilities. Should we conduct background checks? Yes, of course, but defense against terrorism is an onion with multiple layers. Terrorism is like water flowing to its point of least resistance. As our cargo pilots' advocated for security, I wanted every security precaution I could get in place for them. With the exception of placing mechanics back on our jumpseats, the mood of the pilots was against the resumption of companywide jumpseating.
On 01MAY2002, Republican Representative Donald E. Young R-AK, introduced H.R. 4635 (107th): Arming Pilots Against Terrorism Act. Eight months after 9-11 had already passed and the first substantial improvement in airline security had still not been passed. The House Transportation Subcommittee held hearings the next day on the same subject. The White House opposed the legislation.
On 23MAY2002, the FPA presented a PowerPoint briefing to the TSA on many of the security aspects applicable to the cargo sector. Chimenti and Webb demanded that I remove "real time tracking" from the presentation after Logue's emphasis on "marketing over security." I was not happy. They threatened to remove me from the Security Committee if I didn't delete it.
Although the Bush Administration disapproved of arming pilots I was able to convince Chimenti and Webb that I ask DOT to reconsider arming pilots. The American people wanted it, Congress wanted it and the pilots wanted it. They really couldn't argue against it after the Wilson Center released their gun survey results and it was a bill in Congress.
Also, of special interest to me was my recommendation for a "double cockpit door" design that could be done during new aircraft assembly, but also retrofit during scheduled aircraft heavy maintenance. The legislation for double cockpit doors eventually passed, but as far as I know, it has yet to be implemented. As I understand it, it only applies to new aircraft construction. The U.S. Senate has recently begun requesting DOT enforce the new mandate.
The FPA did not make much of an impression at the TSA. We were in transition back to ALPA representation, leaving an independent union system and joining a national union. Several security changes we needed in cargo were being surrendered by the leadership of the union from within. ALPA sent a couple of representatives to keep an eye on their new "red-haired stepchildren," as they didn't really understand cargo pilots in the first place.
In the hours and days upon our return to Memphis, it was clear to me that I had been effectively neutered. There was not much of a reason for me to remain in place.
"I figured out how to bring employee jumpseating back!" Webb announced loudly as he breached the doorway of the security office one day.
"How is that, Dave?" I asked.
"When the Captain leaves the cockpit the employee jumpseater will step up front and guard the cockpit from the inside while the pilot is in the back," he said with a broad grin.
I looked at Bill McReynolds, my assistant security chairman, and asked to speak with him privately.
"Bill, I am resigning. Have you got this?"
"Yeah, I got it." Bill was a good man, and his wife was in surety. She knew a lot of industry people.
Webb had been negotiating with Logue one on one via the telephone. I no longer had the support of the President of the union, or its Negotiating Committee Chairman. This was alarming due to the fact that FedEx pilots had a previous history of union presidents negotiating alone in the parking lot with senior management. We called it "direct dealing" and were not big fans of it.
I concluded the FPA leadership was comfortable with resuming jumpseating, didn't mind that their pilots weren't armed, and gave up on double-door conversions. Forget about stopping the publishing of real time tracking data on the internet. But then, one of our captains asked several Middle Eastern employee jumpseaters why they didn't have any suitcases on one of his flights. He alerted the company to let them know he was removing the jumpers. He was asserting his captain's authority.
The most important thing that captain did was follow John Otto's advice to alert the company and then contact the FBI. The company immediately began "taking hostages," as we call it, by firing captains who refused to carry jumpseaters and horse handlers. It was clear Webb agreed to resume jumpseating prematurely without the will of the pilot group. Then he got out in front of the topic when he reversed his position on jumpseaters and I think was shocked at the amount of support the pilots gave him with respect to the hostages. The reason? They wanted real, tangible improvements in security. Every step in the right direction was a constant never-ending uphill battle with FedEx. Both sides eventually agreed to a truce of sorts, and the company indefinitely delayed the resumption of employee jumpseating and the pilots gave up on Fred supporting them on guns.
On 10JUL2002, H.R. 4635 "Arming Pilots Against Terrorism Act" passed 310 Yeas to 113 Nays in the House. It languished in the House until 05SEP2002, when the U.S. Senate voted 87-6 in bipartisan support of the Barbara Boxer (D-CA) and Sen. Robert Smith, (R-NH) amendment to the pending Homeland Security legislation (HR 5005), despite continuing objections by the Bush administration
and intense lobbying against the measure by airline CEOs. Voting against the measure were Sens. Jon Corzine (D-NJ); James Jeffords (I-VT); Arlen Specter (R-PA); Edward Kennedy (D-MA); Jack Reed (D-RI); and Lincoln Chafee (R-RI). Not voting were Sens. Daniel Akaka (D-HI); Joseph Biden (D-DL); Jim Bunning (R-KY); John Ensign (R-NV); Tom Harkin (D-IA); Jesse Helms (R-NC); and Robert Torricelli (D-NJ).
In the end, the legislation:
amended Federal law to deputize volunteer pilots of air carriers as Federal law enforcement officers to defend the flight decks of aircraft against acts of criminal violence or air piracy (Federal flight deck officers); authorized flight deck officers to carry firearms and to use force, including lethal force, according to standards and circumstances the Under Secretary prescribes; shielded flight deck officers from liability for acts or omissions in defending the flight deck of an aircraft against acts of criminal violence or air piracy; and prevented air carriers from prohibiting a pilot from becoming a Federal flight deck officer, or threatening any retaliatory action against the pilot for doing so; and
became Public Law 107-296 on 25NOV2002 when President Bush signed the Homeland Security legislation.
But not so fast... the language covering pilots was woven into the Homeland Security Act, which in its final form had many attachments. One of them was a one-word change in the Senate. The word "passenger" was inserted before the word "pilots," effectively excluding cargo pilots.
San Francisco Chronicle Staff Writer George Raine reported on March 4, 2003 that ALPA cited FedEx lobbyists as being responsible for the edit job. "We can't speculate what effect lobbying had," said Jim McCluskey, a FedEx spokesman who admitted the firm opposed arming its cargo pilots.
I can confirm that opposition.
On 13MAR2003, Capt. Duane Woerth, president of the Air Line Pilots Association, International, responded to the news:
"We applaud the action taken today by the Senate Commerce Committee, in unanimously adopting an amendment offered by Senator Barbara Boxer (D-CA), which is identical to her bill, S.516, mandating the arming of cargo airline pilots. Senator Boxer has been a vocal advocate of giving all commercial pilots the ability to participate in this important security program, and ALPA is grateful for her dedication to this issue."
Despite the fanfare, the cargo pilot gun remedy was ultimately delayed again when it died in committee. Once again it was reintroduced in the Senate by the same two bipartisan Senators Barbara Boxer, D-CA, and Jim Bunning, R-KY, when they cosponsored S.1657, a bill to amend section 44921 of title 49, United States Code, to provide for the arming of cargo pilots against terrorism on 25SEP2003. The US Senate Commerce Committee unanimously voted the amendment out of committee on the same day. The House referred it to the Subcommittee on Aviation on 13NOV2003. The Amendment became Public Law on 12DEC2003.
Bert Elias, a specialist in aviation policy, prepared a Congressional Research Service (CRS) report entitled "Screening and Securing Air Cargo: Background and Issues for Congress" on 02DEC2010 and noted the 29OCT2010 printer bombs incident "renewed policy debate over air cargo security measures." Elias quoted Mark Clayton's article, “Yemen Packages: Air Cargo Was a Target Before. Why Is It Still Vulnerable?,” in the Christian Science Monitor on November 2, 2010. Clayton speculated that one possible goal of the terrorists was to "... blow up a US-bound passenger airliner or air-cargo jet over a US city."
Mark Clayton quoted Senator Ed Markey (D-MA) “It is time for the shipping industry and the business community to accept the reality that more needs to be done to secure cargo planes so that they cannot be turned into a delivery system for bombs targeting our country," he said.
I agreed then, and I agree now. I tried to tell Them about ceasing the publishing of "real time aircraft and package" data on the internet in 2001-2002. Nobody wanted to listen to me. The ants were just too damn big. Would my warnings have prevented the printer bombs if the government and FedEx heeded my advice? We don't know. What we do know is that we are providing the enemy with valuable intelligence, and we have proof they exploited our vulnerability (more on that later). We are incentivizing or creating an inducement to dance with the Devil. There is no single security system that will defeat terrorism. We hide inside a multilayered onion, as it were, not relying on any single layer to protect us. In my mind's eye at the time, if I could reduce our terrorism vulnerability by 1 or 2 percent in any phase of aviation defense, I was pleased with that.
I stayed out of pilot politics until the wee hours of 04AUG2013, when I was up late sycophantly adhering to my individual FedEx circadian disruption curse by reading news stories on the internet until daybreak. As pilots, we received training on fatigue countermeasures, and conducted our lives accordingly since most of us flew nights or crossed international time zones. The total damage I did to my body and family life is yet to be determined, but I can tell you many FedEx pilots suffer from divorce, sleep deprivation or cancer for the remainder of their years after retirement. I am retired now, but I was still flying the line in 2013.
Somehow a story about the "printer bombs" from 2010 made its way onto my computer screen. I clicked on it. It was a CNN story that recounted how a month prior to the placement of the bombs on FedEx and UPS aircraft, "test runs" were conducted with dummy shipments. I knew exactly what this was when I saw it. I clicked every story link on the same subject I could find until sunrise, including the New York Times and papers from around the world reporting the earlier dry run.
FedEx has the option to opt out of publishing their pilots’ real time position, altitude, heading, airspeed and flight identification number, but they choose to release that FAA air traffic control data to companies that republish it on the internet such as FlightAware. As Bill Logue said, "Marketing trumps security."
But for the actual airbill numbers collected by Saudi intelligence agents in the hours prior to takeoff for the United States on 29OCT2010, and subsequent interception of the actual bomb shipments, al-Qaeda’s Anwar al-Awlaki and Ibrahim Hassan al-Asiri would have successfully detonated bombs over the northeastern United Sates. Those flight crews were extremely lucky. It was reported that FedEx at one point, just prior to pushback, wanted to reload the live bomb back on the airplane until they were finally convinced by security officials to keep the damn thing off as it needed to be disarmed.
Richard Clarke, former chief counter-terrorism adviser on the U.S. National Security Council, told the press: "The dry run is always important to al-Qaeda. In this case they wanted to follow the packages using the tracking system.”
I agree. This was a key segment of the story that I missed in 2010, for whatever reason, and discovered on 04AUG2013.
Captain Bill McDonald was my chief pilot so I sent him an email asking if he could arrange a phone call with Fred Smith, as I wanted to discuss this security issue with him. I turned my cell phone off and went to sleep. I got up later in the day and checked my flying schedule. I had been removed from a choice weekend layover in Panama much to my chagrin.
FedEx pilots can check their flying calendar to see notes from crew scheduling. There was a NOQ UFN noted, which means I was "Not Operationally Qualified Until Further Notice."
"WTF?" I asked myself before automatically checking my company email account. I had been officially disqualified to operate or jumpseat on FedEx aircraft. I wrote Bill McDonald an email, inquiring about why I had been grounded.
Over the next few days I learned I was to fly commercial to Memphis for a meeting with Rob Tice, a VP from Legal; Todd Ondra, now a VP from Security; and my Airbus fleet captain Rob Fisher on 09AUG2013. When I arrived in Memphis the night before, I was getting my bag off of the conveyor belt when my phone rang. It was the ALPA attorney.
"Mark, do you want me to be there tomorrow morning?" he asked.
"No, thanks," I said. "This is an old security issue that goes back to 9-11."
"Well, I recommend I be there. You can't trust these guys."
"I think I'll be alright, but thanks for offering."
Ultimately, it wouldn't have mattered if he was there or not. They were out to destroy me.
The next morning, I waited outside as they held a pre-meeting. They called me into the conference room, and we shook hands. All three of them were sporting smiles, which I should have spotted as the canines and incisors that they were. They are used for tearing, gripping, and cutting meat into smaller, more digestible pieces of food.
So, I briefed them on the issue of "real time tracking" starting from back in 2001-2002, and the news I learned about the printer bombs and al-Asiri wanting to time the detonations more precisely. It was my warning to them that the practice of publishing each flight's ATC tracking data was a violation of our responsibility to "prevent and deter" the placement of bombs on our aircraft. I told them nobody listened to me right after 9-11 and "here we are today." All three took notes.
"We are not preventing the carriage of bombs, we are actually encouraging it," I said. "We are helping them!"
Not one of them asked me any questions when I concluded, but then Tice stood up.
"Bill McDonald says you've had a stroke," he said with a Cheshire Cat smile on his face.
"Where did Bill McDonald go to medical school?" I asked.
Tice quit smiling and handed me a stack of paper full of internet postings.
"He says you've been posting messages about a stroke and what happened in Laredo on a pilot bulletin board," Tice replied.
"You're smoking crack!" I proclaimed laughingly.
I strongly denied the medical accusation, which would have been the same as admitting a felony, since pilots must reveal all medical conditions to their Aero Medical Examiners (AME). For me to conceal a stroke from my AME would give FedEx cause for termination, which was their goal.
I read a few of the postings as fast as I could. It made no sense to me. Tice's mention of Laredo, I assumed, was a reference to an ATC weather gate hold I endured three months prior. Bill McDonald wanted my scalp for me telling the company I was waiting out a solid line of thunderstorms between me and Memphis.
"Where is Bill McDonald?" I asked. "Why doesn't he have the balls to be here? Why are you doing his dirty work?"
"I believe he is on vacation," Tice said.
"I want copies of all of these postings," I said as I quickly paged through them. Many of them were highlighted in yellow. During discovery, Tice never produced the postings I saw that day.
"You are not 'Mayday Mark?'" he asked.
"I have no idea what you are talking about."
Tice stood up, reached across the table and grabbed the internet postings out of my hands. He sat down in his chair, buried his forehead in his hands and stared at his feet.
Rob Fisher asked to see my medical certificate.
"Sure. Here!" I said and handed it to him.
"This is not the guy!" he said to Tice. "His flight physical is not the same. Mayday Mark has a different date!"
Fisher told me the meeting was over and he was returning me to flying status in twenty minutes or as soon as he got back to his office, whichever is faster.
I was relieved, but I still didn't understand why they grounded me in the first place. I didn't have a clue what these bastards were up to, but glad that whatever happened to me was over. Or so I thought.
A FedEx crew shuttle took me back to the Memphis airport, and I caught my return leg back to Austin. I was in my F-150 and just exited I-35 when I remembered to turn my cell phone back on. When I did, there were several call notifications from FedEx.
Upon arriving home, I called the number on the screen. Rob Fisher answered.
"Hi, this is Captain Estabrook. What's up?"
"Well, Mark, I'm sorry to inform you that I had to put you back on NOQ," he said.
"Why? I never understood why you grounded me in the first place. Was I grounded for wanting to speak with Fred?"
"Well, they just want you to be evaluated by a psychiatrist," he said. Fisher knew what that meant. We were both pilots. Aviation doesn't have too many captains flying widebody jets through the skies who are under the care of a psychiatrist, if any.
"What the f**k!?"
"Mark, be careful. We are on a recorded line!"
"I don't give a f**k!"
I was pissed. It was a drive-by-shooting by management. They were shooting the messenger.
It's funny but Rob couldn't seem to produce the recording of this phone call during discovery. Must have been accidentally misplaced. Yeah, that's the ticket!
"Why are they sending me to a shrink?" I demanded.
"All they said was is that you know too much!"
"Who is they?"
Thus began a 7-year legal battle for justice that still wages today. The American people have no idea that FedEx, OSHA and the DOL have rubber stamped the humiliation, castigation and character assassination of an airline pilot who only wanted to report violations in our aviation security system. Not one media outlet has reported this story as of the time of this writing. Does their lack of interest indicate their support of a Soviet psychiatric system of punishment for those who have the audacity to tell the Emperor his wardrobe is invisible?
In the following days communications from FedEx and Harvey Watt, a contracted medical advisor the company hired to minimize their liability, began sending emails and letters. The first letter I received was from Fisher, which instructed me to cooperate with the Harvey Watt Company or be terminated.
The first email I received from Harvey Watt was for an appointment at an alcoholic treatment center. Pilots affectionately refer to these centers as "spin dry programs," an analogy for putting pilots in a clothes dryer and drying them out. I called Harvey Watt.
"What the hell is this?" I asked. "The first thing the FedEx lawyer said to me was Captain McDonald accused me of having had a stroke. Now you guys are going to paint me as a drunk, too?"
"Uhhh... let me call you back," the Harvey Watt employee said.
After some time went by, he called me back.
"I'm emailing you the contact information for a doctor. Contact him."
And I did. I told them how this started as a security issue, and now they are sending me to a shrink. That first MD office called Harvey Watt back and told them they wanted nothing to do with this case. After forum shopping, Harvey Watt found a new MD, Dr. Thomas M. Bettes in Dallas, who was assigned "my case" as an aeromedical examiner (AME).
I spent over an hour on the phone with him asking for his professional opinion about what was happening to me. He was polite, but very evasive. I later learned he was directed by FedEx to send me to a psychiatrist in Houston. This was a breach of our pilot contract. Flight management is specifically prohibited from inserting themselves into the medical history of one of their pilots. Pilots are either issued a First Class Medical certificate or they are not. I possessed this certificate, and it was recently issued by my own AME, Dr. Mark Nugent, in Austin, Texas. This doctor, a very professional one at that, had not been consulted first as required by the pilots' collective bargaining contract.
I was being railroaded and I knew it. This was not anything but character assassination. I called aviation attorney Alan Armstrong in Atlanta, Georgia. Alan and I had been friends for decades, so I had no trouble asking him for advice. We talked about everything that had happened to me and I hired him immediately.
On 13AUG2013, Armstrong wrote a letter that basically encapsulated the next seven years of litigation. Tice, in his response to Armstrong, refused to divulge the reason for the company's ordering me to submit to a psychiatric examination in his reply.
On 16AUG2013, Captain Fisher wrote me and advised that the company "has a reasonable basis to question whether you have developed an impairment to your ability to perform duties as a pilot." Although he could not or would not share his "reasonable basis" with me, in violation of our contract, he nevertheless directed me to contact Bettes (which I had already done). He closed with a warning "Failure to comply with this directive may result in disciplinary action."
Translation: we will fire you if you don't undergo a psychiatric examination. Every airline has the right to ask a pilot to undergo a physical should their medical certificate expire or is not issued. They do not have the right to call downstream in the medical issuance process and direct the AME to send you to a shrink. If they have a legitimate reason to send a pilot to a psychiatrist, even then they can only refer him to an AME as long as they describe their "reasonable basis" (pilot's symptoms). My "unreasonable basis" was that I wanted a security breach closed. That's not the same as a pilot walking into a Chief Pilot's Office juggling -- while wearing a tuxedo from the waist up, and butt naked from the waist down (that is a true story). I won't tell you the airline or the pilot involved because he was a friend of mine I flew with during the Iran-Iraq War in the 1980s.
That is not what this case is about. The mentally ill pilots who are occasionally grounded are done so professionally and legally. As Captain Fisher said to me "you know too much." THAT'S what this case is about. I spoke up about a national security issue I had been concerned about for the preceding twelve years, and which the company and federal government were fully informed about.
Dr. Bettes directed me to Dr. George Glass. My appointment was ironically on September 11. I don't know if that was a coincidence or just their sick and twisted humor.
His receptionist gave me a clipboard and forms to fill out.
"And why are you here?"
"I'm still trying to figure that out" I said.
"So what were your symptoms Mr. Estabrook?"
"Uh, .... well, I asked to speak to my CEO. So, I guess I pissed him off? I don't think he likes me."
"Anything else?" she asked.
"Hmmm. I told my boss we should stop publishing real time flight and package tracking data for terrorists on the internet."
She slowly closed her glass window. Her safe space had been penetrated since I used the word "terrorist." Now she was up and walking into the doctor's office. She told him what I said. That conversation was included in Dr. Glass's final report.
Dr. Glass asked me several hours of questions about my childhood, family, parents, wives, sex life, friends, college... I got the distinct impression he was trying to speed up the interview. I found out why. He gave me a Minnesota Multiphasic Personality Inventory (MMPI) exam to finish and it was already late in the afternoon. For those of you who have never taken this test, it is thousands of questions about whether you liked your mom or father better, teased or harmed animals, et cetera.
Glass interrupted me four or five times, trying to speed me up. He either wanted to miss the traffic in Houston, or he was trying to observe how I performed under stress. When he released his report, he seemed to imply I cheated on the test. I was shocked. First, you would have to have an exceptional background in psychology to know how to do that. Second, my whole flying career was riding on answering honestly and accurately.
Dr. Glass stopped short of issuing a diagnosis but recommended me for therapy in his report to Dr. Bettes. Bettes called me one afternoon on 26SEP2013 to coordinate "therapy" with me.
"Therapy for what?" I asked. I was fairly certain the field of psychiatry had not advanced enough in the human timeline to become a science or technology, yet alone prevent employees from "seeing something and saying something."
Dr. Bettes paused and then said, "he just said you would benefit from therapy."
"Huh, that is interesting," I said. "I never heard of starting therapy without a diagnosis, but I am just a night cargo pilot." This was getting funny if it weren't so serious. Out of nowhere I thought of another question for Bettes.
"Can the therapist prescribe medication during therapy?" I asked.
"Well, yes, if they feel it will help you," he replied. "I assume you want to see a therapist in Austin? I've got a list of them that Harvey Watt approved...".
"Whoa, there, cowboy!" I interrupted. "I'm not going to therapy for a diagnosis that was never issued, yet alone start meds for reporting a security breach."
"You ignored my previous instructions to contact my personal AME, Dr. Mark Nugent, before you sent me to a psychiatrist, which was a violation of our contract with the company, and then ran off to London. In other words, I had to endure a psychiatric examination while you toured Big Ben and ignored my personal AME, even after I sent you a copy of his letter."
I had to attend the appointment with Dr. Glass or face termination for insubordination. I was trapped. Flight management was pushing Dr. Bettes in one direction, without informing him of the contractual requirements for what little mechanisms of due process we possessed in our CBA.
"Dr. Bettes, I think it is in my best interest not to continue speaking with you on the telephone. I think it is time for me to speak only through my attorney. Goodbye," and I hung up the phone and called Dr. Nugent.
Dr. Nugent was not happy with everything I told him. He asked for Dr. Bettes' phone number and called him immediately. He explained there was no way to put the FedEx genie back in the bottle. The damage to my reputation had already been done.
I wrote a letter to Dr. Bettes the same day to review what we discussed, and I kept a copy. In the letter I reminded him that "in the event that the evaluation and treatment are inappropriate in this case, there is a mechanism in the language that triggers a third medical opinion."
Bettes pulled back on the reigns and circled his FedEx legal wagon train. Nugent called me after they spoke to each other. I was hoping that they could reach a conclusion that this nightmare was over, but they did not.
"Mark, I got him to agree to a third-party intervention. Who do you want to use? Do you have any preference?" he asked.
"Yes, I do. Let's contact the FAA and find out who they use for their controllers and pilots. I want the most ferocious, meanest dog in their barnyard," I said. "I want the FAA to know I didn't shop for a shrink, I used theirs!"
On 02OCT2013, Dr. Bettes wrote me to ask if I intended to challenge his determination that I was not fit for duty.
"Ya, think?" I thought as I read the letter. This was a doctor whom I never met and only spoke to on the phone. His clairvoyant medical examination of me determined he needed to go to London and I should go to Houston to see a psychiatrist. When he got back from London, he determined I could benefit from some therapy, maybe even some psychotropic drugs. All of this without an in-person medical examination.
The next day, on 03OCT2013, Lee Seham in New York filed a response to Dr. Bettes' query with a federal complaint against Federal Express Corporation on my behalf under The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), which the FAA says "prohibits discrimination against air carrier industry employees who report information related to air carrier safety to their employers or the Federal Government. This includes testifying or assisting in a proceeding against the employer relating to a violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other Federal law relating to
air carrier safety." Open and shut, right? Guess again.
Dr. William E. Green, III, of Columbia, South Carolina, a board-certified psychiatrist well known in the aviation and FAA aeromedicine community, agreed to act in a rebuttal tie-breaking capacity. He questioned me thoroughly and listened to me carefully. Thirty minutes into his note taking, his hand shaking, he asked if I wanted to take a break. It was clear that what I was telling him was disturbing.
"I have never heard anything like this in my entire career," he said. "This is frightening. We are not the Soviet Union!"
"I'm glad I am not the only one that feels that way," I replied.
Dr. Green reported in his follow-up examination report of me that:
“I did not see any evidence of abnormal thinking or mood symptoms, and also feel he is psychiatrically stable and displays no evidence of any coexisting psychiatric disorder which would interfere with his ability to safely operate aircraft. I also strongly disagree with some of the medical opinions of Dr. Glass in that I do not see any evidence of ‘depression or hypomania,’ and that he was truly trying to raise these issues more as safety and security issues and not in an effort to raise trouble or cause problems at work.”
Administrative Law Judge Scott R. Morris’ extraordinary findings on 16 May 2017 effectively held that FedEx initiated a psychiatric examination without reasonable cause and improperly directed Dr. Bettes to authorize a psychiatric examination without prior medical review or consultation with Estabrook's AME. The ALJ found that there was "no credible evidence" supporting key factual allegations upon
which FedEx’s decision was taken and that the company had attempted to "cloak its decision" to require the Complainant to undergo a psychiatric analysis with a "disingenuous approach," and that FedEx "treads on thin ice by offering such a flimsy justification for referring Complainant to a mental evaluation in this case."
The ALJ concluded that FedEx's "treatment of Complainant resembles ... an over-reaction in response to Complainant's demonstrated knowledge of security issues..." and strongly criticized FedEx management by ruling that:
“The quickest way to chill the open dialogue in the area of aviation security is to place a person’s livelihood at stake for speaking up. Respondent referenced the Germanwings incident in support of its argument for deference in the manner it proceeded. The cases differ in several important respects. Namely, no evidence exists that suggests Complainant or his treating physician withheld information from Respondent about his mental health. Sending someone for a mental health evaluation merely because his statements are odd or because one “knew too much” is a slippery slope that must be guarded against. Respondent treads on thin ice by offering such a flimsy justification for referring Complainant to a mental evaluation in this case. Complainant was well justified to raise his concerns and object to Respondent’s actions...”
but then declined to place liability on Federal Express.
In a hyper-technical legal argument, ALJ Morris ruled in favor of FedEx because only the FAA can interpret its regulations and that the FAA obviously isn’t concerned that republishing real time package and aircraft-tracking data on the internet violates FedEx’s responsibility to prevent and deter the carriage of bombs. Instead of preventing all airlines from using psychiatric tactics to silence whistleblowers, his decision actually encourages the abusive and painful practice. The security, safety and employment implications of his decision are staggering.
During my youth, our civil defense and educational institutions promoted the now infamous Duck and Cover film in schools and on public television to create an atmosphere or illusion of survivability of a thermonuclear war between the USA and the Soviet Union. All you had to do to survive was get under your desk or lean against a wall in the hallway. Soviet hydrogen bombs were no match for your local Oklahoma student desk company. Similarly, as you walk through airports or shopping malls, you may read "If you see something, say something," and know everyone is safe if we all just rely on each other to spot terrorists. Just get some crawl space under your passenger seat, right?
FedEx, of course, signed a partnership agreement with the Department of Homeland Security, a federal agency formed after 9-11, which basically endorsed the concept of encouraging employees to say something if they see something.
That is what I did.
"If you see something, say something" in its current state, is nothing but marketing hooey and public propaganda. My reward for participating was to be grounded and sent to a psychiatrist.
During my appeal, FedEx and the DOL have taken the position that I was an "unreasonable man" to report the violation and expect positive treatment for my efforts. But was I unreasonable?
My lawyer served a Freedom of Information Act (FOIA) request for all materials concerning the "printer bombs" on a number of what I call "alphabet groups" in Washington DC, including the Department of Homeland Security (DHS). Apparently, they were tracking the enhanced intelligence gained from "real time tracking" with interest as the printer bomb plot unfolded. I wonder if the Senior Watch Officer at DHS and the National Operations Center (NOC) thought I was being unreasonable:
See DHS page numbers 00111-00112 for terrorist package tracking (pinging) activity and IP sourcing;
See DHS page numbers 00125-00126 and 00183 confirming the bombs were timed for inflight detonation;
See DHS page numbers 00153 and 00198 reporting possible prior FedEx package shipments from Yemen on 25, 26 September 2010, almost a month prior to the October 29, 2010 printer bomb shipments; and
See DHS page numbers 00175 and 00198 for report of a preceding failed bomb attempt via FedEx on 27 September 2010, almost a month prior to the October 29, 2010 printer bomb shipments.