Vol. 12, No. 2,856W - The American Reporter - March 18, 2006

Reporting: Washington

by Margie Burns
American Reporter Washington Correspondent
Washington, DC

WASHINGTON -- The FAA has been notified that it will be sued by some survivors and relatives of victims of the Sept. 11, 2001, terrorist attacks on New York City's financial district and the Pentagon, the American Reporter has learned.

Baum Hedlund Law, a firm which includes plaintiffs' attorney Mary Schiavo, a former Department of Transportation Inspector General, has filed a Federal Tort Claims Act notice with the FAA indicating their intent to sue the agency on behalf of more than 60 claimants. The Nolan Law Group, representing two other plaintiffs, has also filed a claims notice with the FAA. Washington, D.C.-based Baum Hedlund Law and Chicago-based Nolan Law are awaiting the FAA's response to their FTCA filing.

According to Lorna Brett, spokesperson for the Nolan Group and plaintiff contact for the 9/11 litigation, the agencies were served with the required papers last week, shortly before the expiration of the two-year legal deadline on Sept. 10, 2003. By law, before a federal agency can be sued, the agency has to be "officially noticed up," as Brett puts it. The process ran into a hitch in the FAA's Chicago regional office, near O'Hare Airport. Brett said in a telephone interview that "When we went to serve them [the claims notice], someone who worked for our firm was thrown out by security." The incident was unusual, according to Brett; process serving is not something most agencies are unaccustomed to, and "we had called [the legal department]" at the Chicago FAA "to say we've got someone coming to serve you a Form 95."

But when the Nolan employee got to the building, she said, "we weren't able to get in touch with legal; they wouldn't even answer the phone. Someone in another office said, 'This isn't our problem; this is Human Resources,'" and no one at the office would accept service. Instead, personnel at the agency called security, Brett said, whereupon "backup security almost surrounded him [the Nolan representative]," refused to let him talk with anyone in the agency, "and escorted him out." Brett clarified that the form was served on the Chicago office the following day - "we finally got hold of someone in the legal office, and said we'd appreciate your accepting this" - although only after the law firm called ahead and got the name of the regional legal counsel in the FAA office who agreed to receive the form.

"Maybe it was pre-9/11[anniversary] jitters," Brett added, referring to general anxiety on the September 11 date. Robin McCall, spokesperson for Baum Hedlund, said that the FAA has up to six months to deny the claim. The agency can also accept it, which would not mean that the FAA admits liability. Sometimes, she said, plaintiffs in similar cases file a request with the agency to deny a claim, to expedite the process. The complaints were originally filed in 2002, McCall said, and have been amended. The 9/11 lawsuits have been consolidated by Judge Alvin Hellerstein, in the U.S. District Court for the Southern District of New York. Hellerstein's ruling last week, shortly before the Sept. 10 two-year deadline, denied defendants' motions to dismiss the lawsuit and effectively allowed the litigation to proceed. Calls to the FAA for comment have not been returned. Information on the litigation is available on the FAA Web site at www2.faa.gov/agc/AGC%20Litigation.htm. The amended complaints, which do not as yet include all defendants' names according to McCall, are online at http://www.baumhedlundlaw.com/media/medialinks.html. A rider to the Form 95 filed on behalf of heirs and relatives of one victim states that the FAA was the agency responsible for security at the airports involved in the skyjackings - Boston's Logan International Airport, Dulles International Airport, and Newark International Airport - as well as at various air traffic control facilities. The lawsuit alleges, in part, that:

  • "within approximately twenty-eight minutes after the departure of United Airlines Flight 175 from Logan International Airport, in Boston, Massachusetts, the United States, through its agency the FAA, its agents, servants and/or employees knew and/or should have known that United Airlines Flight 175 had been hijacked."
  • "The United States, through its agency the FAA, ... knew or should have known that as a result of its audits (including, but not limited to "Red Team" audits), inspections, evaluations and/or oversight of the airlines and their respective airport security companies, that said entities were unable to prevent a hijacking from occurring due to their inadequate, unsafe and/or inappropriate pre-boarding screening services;"
  • "knew or should have known that civilian aviation was a specific target of terrorist organizations and/or individual terrorists;" and
  • "knew and/or should have known that the airport security system as it existed on and prior to September 11, 2001 constituted a grave security risk."

The lawsuit also alleges that the FAA:

  • "[F]ailed to comply with established policies and procedures in the handling of the various hijacked aircraft, including, but not limited to, failing to immediately ground all commercial aircraft after learning that aircraft had been hijacked and had departed from their intended flight paths;"
  • "[Allowed] additional aircraft, specifically including United Airlines Flight 175, to depart despite the knowledge that aircraft had been hijacked and had departed from their intended flight paths;"
  • "[F]ailed] to establish proper control and coordination over the hijacked aircraft;"
  • "[F]ailed] to promptly notify other branches of government, including, but not limited to, the United States military, of the hijack situation;"
  • "[F]ailed] to promptly make the proper notifications regarding the hijack situation as required by FAA policies and procedures;" and
  • "[F]ailed] to comply with applicable FAA policies and procedures after learning of the hijack situation."

Most court-watchers would predict that the administration will play a delaying game, to run out the clock while public outrage over the 9/11 attacks fades, along with sympathy for the victims. Brian F. Sullivan, a former FAA Special Agent and risk management specialist in aviation facilities security, thinks the government's strategy is more aggressive, and more sinister. His prediction is that one chief legal strategy for the administration will be the "national security" argument, especially to impede discovery in the case. Sullivan, who supports both the lawsuit and the Independent Commission, sees litigation as a way to bolster the research of the Commission. "What the law firms are desperately trying to get," Sullivan said, "are about 10 to 15 warnings, information circulars, issued by the FAA in the nine months prior to 9/11." These information circulars or directives have already been made public in summary, but not in detail. The litigants want to get hold of them.

"If they spoke of the potential of a hijacking, or about Osama bin Laden," that evidence would help the plaintiff's case, Sullivan points out. The warnings were disregarded, especially for cost-cutting reasons on the part of the airlines, he says. Sullivan said that the FAA in conjunction with the airlines may say that secrecy is necessary to some ongoing investigation only "to hide their own negligence and incompetence." Sullivan is one of a small group of aviation experts formerly in government who have turned into whistleblowers about aviation security. He sees no national security justification for secrecy over documents that are now two years old. "I'm sure the FAA and the airlines are going to say, 'You can't have that'," Sullivan added. "Then Judge Hellerstein will call the parties in before the trial, and try to make a determination about national security and what should be given to the firms."

The process of negotiating over evidence has already begun. Some persons involved in the case had to get security clearances, including attorney Mary Schiavo of Baum Hedlund. "Of course, it wasn't too hard for her to get," Sullivan commented. "She was a former OIG (Office of the Inspector General)" official. "SSI (Sensitive Security Information, which is a designation used to limit access to information for security reasons)) is going to be a battlefront in the case," Sullivan said, but not the only battlefront.

Another issue is how this Sept. 11 case differs from other airline disasters, Sullivan says. "One difference here is that in all previous cases involving the airlines, the NTSB [National Transportation Safety Board] was always brought in before. But not this time." Every previous plane crash in U.S. history has been followed closely by an investigation, but not this one, he said. Sullivan, like other former FAA special agents, has mentioned in other interviews the FAA's tendency to "hide negligence and incompetence - including by using SSI - yes, but Hellerstein will try to scrub that down." More than once, Sullivan expressed hope that the lawsuit would end up helping the work of the Independent Commission. "I know some of those people [investigators for the Commission]. They're good people - the line soldiers are really trying to find out the truth, that's what they're interested in. But while they try to find out things - and I'm trying to help them - but I know when they do find out something they have to kick it up to the commission level, and that's where politics is going to come in." "Politics of both parties," he adds. "Hopefully the discovery process will help."

He points out that some neo-conservative Websites have already begun a campaign against the lawsuits, calling them "frivolous" and "silly," and says it makes him very angry.

"How would you feel if it were one of your relatives who got killed?" he asks. "How would you like to be called 'silly'?" He is even angrier that some sources are also impugning the motives of the families. "These victims' relatives are not out for money," he says heatedly. Logically, "they've got money from the fund [already]. They know they can get money - they want the truth." He is fully convinced that the families sincerely want to know what led up to the attacks and how they happened. Meanwhile, he points out,"the taxpayers including you and me are paying through the nose to keep the airlines from going belly up, and those airline executives are not hurting at all." Like other ex-security personnel, Sullivan tends to have a jaundiced view about the airline management's commitment to safety, and their ability to escape the consequences of their earlier decisions; "only low-level baggage screeners and people like that get fired; now flight attendants are being laid off," and the airline executives are being bailed out by the taxpayers.

"Those bastards should pay," Sullivan sums up. "They should be held accountable. I hate to see the victims being disparaged, their motives being disparaged. I hope this lawsuit can supplement and complement what the Independent Commission is doing."

Copyright 2006 Joe Shea The American Reporter. All Rights Reserved.

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