“That’s it?” the judge asked.
“Yes, Your Honor. I believe so.”
“Well, you’d best be sure. Do you have more to add to this oral argument or not?”
Gracie sighed and looked down for a moment, shuffling the papers before her and trying desperately to find anything else that she hadn’t argued. It was as if she were back in law school trying to defend her interpretation against the impending onslaught of her constitutional law professor, who had been one of the most frightening, arrogant, and devastating humans she’d ever encountered.
What am I missing? It was the same question she’d asked herself in those classes as the professor paced and rolled his eyes at her stupidity.
Oh, God! Of course! “Your Honor, I’m sorry. I almost left out the basis of our adding the FAA to the TRO request, and as a respondent in the show-cause petition.”
“By all means, go ahead, Miss O’Brien.”
“Thank you. Specifically, we have factual reason to believe that the FAA, directly or through various staff members, inspectors, or other personnel, is actively attempting to tamper with, hide, or destroy evidence that would invalidate its enforcement actions against Captain Rosen. We believe the FAA is directly or indirectly involved in taking the wreckage, and we have reason to believe that it is hiding FAA air traffic control radar record tapes that would show the presence of another aircraft at the very place and altitude where Captain Rosen’s aircraft lost the propeller blade. This belief is buttressed by the Coast Guard’s confiscation of the videotapes Captain Rosen’s daughter made of the wreckage before being ordered off the site, and from the fact that FAA personnel in Anchorage lied to Ms. Rosen about the ability of their radar to track an aircraft flying at the low altitudes flown by Captain Rosen just before the accident. In brief, Your Honor, we believe that there may have been another aircraft operated by, or for, an arm of the U.S. government with FAA knowledge, which may have struck a glancing blow to Captain Rosen’s aircraft, leading to the loss of the propeller blade and thus the loss of the aircraft. If so, the aggressive moves to recover and hide the wreckage, suppress any videotaping of the wreckage, suppress radar tapes as well as misrepresent their contents, form a prima facie pattern of official deception. The purpose of this deception is unclear. It may be for the purpose of supporting the FAA’s misguided attack on Captain Rosen, or it may be for the purpose of hiding or keeping secret some other operation that intersected Captain Rosen’s flight path. In any event,” Gracie summed up, “the career of an honorable and senior airman hangs in the balance with massive monetary and reputation loss, and the FAA should be denied the ability to collude in any manner whatsoever in the suppression of evidence.”
“Now are you through?” the judge asked.
“Yes, Your Honor.”
“All right. Counselor, the level of proof required to make a prima facie case that any arm of the United States government is engaged in illicit or illegal cover-ups is very high, and it is a burden I expected from the beginning you would have a difficult time reaching. Governmental agencies — and you’ve sued the Coast Guard and the U.S. Navy as well as the FAA here — seldom get the idea they can abandon the law and all accountability. Thus, if some arm of the military, for instance, did take the wreckage of your client’s aircraft, there is no justification for automatically assuming that it was done illegally or for nefarious purposes, or that they will so mishandle that wreckage that evidence will be destroyed. Hollywood may make such assumptions, but rational jurists and courts do not. Second, there may be very good reasons for confiscation of an underwater videotape that are wholly unrelated to any desire to help the FAA prosecute an individual pilot, and again there is a high burden on your shoulders to make that case sufficient to justify a TRO and the attendant hearing. The fact that these things occurred is not enough. Finally, a tough FAA inspector offending your client with tough questions does not necessarily constitute prejudicial bias in contravention of due process, nor does your argument with respect to the FAA’s involvement make much sense to me. They’ve taken your client’s license because he had an accident, and they deem it to be a result of multiple violations. Despite the inconvenience of his being on the ground for awhile, there is a due process procedure for appealing that action, and you may be wasting time in starting that formal process by being here. The fact is that you’ve given me little reason to conclude that the FAA knows anything about the movement of the wreckage, what is or is not on radar tapes, or the presence or absence of other aircraft, other than the fact that their enforcement action might benefit from the absence of the alleged proof you claim is in the wreckage. These are rabbit trails leading in all directions, and yet you want me to accept them in a way that presumes essentially evil intent on the part of the FAA, the Navy, the Coast Guard, and God knows who else. I’m sorry, Miss O’Brien, but I—”
“Your Honor, may I add one more thing?” Gracie said suddenly, the risk of angering the judge with an interruption paling against an impending rejection of everything Gracie had tried to accomplish.
“Oh, must you, Counselor?”
“Yes, Your Honor. In direct answer to your points.”
Judge Walton sighed and studied Gracie’s face for a few seconds. “Very well. Go ahead. Briefly.”
“The burden in an equity request for a TRO is on the moving party to state a case that, if factually true, would constitute grounds for injunctive relief. I respectfully suggest that Your Honor is raising that burden higher than the law requires only because this involves the government, and that by so doing you are demanding that I state not only a potentially viable case, but one that logically convinces this court as well. That is not the requirement I have to meet. In fact, I believe I have met the burden, Your Honor. Your detailed examination of the testimony and pleadings are to be made in the show-cause hearing, not here. There is where the court may determine whether the alleged facts I have presented are sufficiently credible. In other words, I ask the court — I plead with the court — to go ahead and issue these TROs and permit the government to answer, before simply sweeping these actions aside, leaving Captain Rosen no possible recourse if our allegations are true. The one operable question, Your Honor, should be simply this: If, by some strange anomalous and unprecedented twist of fate I’m right and the FAA has illicitly colluded through other agencies to deprive Captain Rosen of his right to due process, his right to preserve evidence, and his right to exonerate himself, is justice in any way served by cutting off the process at this point?”
Gracie felt her heart fluttering as she watched the fingers of the judge’s right hand drumming on the bench, her other hand cupped under her chin as she leaned forward and stared at Gracie in thought. There was dead silence in the courtroom, except for the hiss of the air-conditioning system and the final keystrokes of the court recorder, who looked up now, first at the judge, then at the lone lawyer standing and waiting nervously for the ruling.
Another sigh from the bench. The judge’s hand left her chin. The drumming stopped, as did the movement of time in Gracie’s mind.
“Miss O’Brien, that argument violates my ban on flowery language, but it did contain a certain symmetry of thought. I have no doubt that my initial impression will be borne out, and that the dark conspiracies envisioned here will be shown to be nonexistent. However, in a phrase, you’re right. I was about to hold you to a higher standard than necessary. I’m very much of the opinion that none of these TROs should be granted, but… your question of whether justice is served by dismissal is sufficiently provocative to justify a conservative course here. So, I will issue these TROs and — though it will infuriate my clerk and consternate my fellow members of this bench by interrupting the normal flow of business before this court — I’m going to set a show-cause hearing for tomorrow morning at ten. We’ll see what the FAA and the rest of the government has to say.”