“You’re not going to listen to me? I can’t believe this!”
“I’m listening, but I can’t stop this, and I wouldn’t if I could.”
“You’re going to get us killed!”
“No, I’m not! You’re panicking, April. Whoever has threatened the captain is bluffing.”
“The house was ransacked!”
“You said yourself the sheriff wasn’t sure, and… and… your folks weren’t kidnapped. They ran.”
“Gracie, Dad said—”
“He didn’t say it to me! Okay? That’s the bottom line. We’re going to do every damn thing possible to get his license back, and I have no reason to believe that isn’t the right course of action. Now, get a grip!”
April stared at her for several long seconds before swallowing hard. “You think?”
“Yeah, I do.”
April nodded, her voice soft and subdued. “Okay.”
As Gracie pushed through the ornate double doors of the appeals court, the building itself did not seem threatening, but everything within — from the polished marble hallways to the spartan decor — was a reminder of the might and importance of what went on there. And here I am, Gracie thought, attempting to bend the federal government to my will. It was as if she had decided to attack a giant stone citadel with nothing more than logic, a hastily written brief, and her own interpretations of the law.
Gracie entered the courtroom with a squadron of butterflies performing loops in her stomach. Three judges were seated at the bench, each in an oversized leather chair. The one on the right held the lanky frame of Judge Williamson, instantly recognizable from the night before. The other two held men with stern faces belonging to Chief Judge Joe Briar and Judge Alex McNaughton.
April squeezed her elbow and broke away to take a seat in the first row of the gallery. Gracie seated herself at the counsel’s table, trying not to pay too much attention to the government lawyers assembling on the opposite side, and trying to ignore the fact that there was one of her and five of them.
It’s okay, she told herself. You’re ready for this!
She would have only five minutes to argue the case and convince the men behind the bench, and yet, if she could stick to the words she had practiced, five minutes would be enough.
When the Rosen case was called, Gracie got to her feet and moved to the lectern. There was a small green light glowing inside, and when it turned yellow, she’d been cautioned, she would have one minute left. When it turned red, she would be out of time. “May it please the court,” she began, “I am Gracie O’Brien, counsel for Captain Arlie Rosen, the plaintiff and petitioner in this matter. We are appealing the dismissal of the matters in my brief by the district court, and—”
“We’ve read your brief, Counsel,” Judge Briar interrupted, somewhat laconically. “And it appears that your trial court judge, Judge Walton, clearly felt she lacked the specific evidence to justify upgrading the restraining orders to injunctions. That type of finding of fact we leave to the lower court, yet you’re arguing here that her interpretation was wrong as a matter of law, because in a case for emergency injunctive relief, a court must seek to prevent imminent harm even before there is evidence that such a threat truly exists. If that were true, wouldn’t it mean that any allegation of potential harm, no matter how bizarre or unsupported, would require a court to issue an injunction?”
There was a small noise behind her, and Gracie thought she heard someone moving out of the seats and back up the aisle. She glanced around involuntarily and realized with a start it was April.
“Counselor?” Judge Briar said as he tried to recapture her attention. “Are you with us?”
Gracie turned back immediately. “Sorry, Your Honor. No, in fact, we are merely stating the essence of equity jurisdiction.”
“But this isn’t entirely equity, is it?” Judge McNaughton interjected. “I believe part of it is admiralty as well.”
Gracie quickly scribbled a note on where she’d been in her argument. Appellate judges almost never permitted the lawyers to talk without interruption, and it was terribly confusing.
“All three of the combined actions, Your Honor,” Gracie began, “were primarily equity actions, with only a reference to a particular principle of admiralty law. Now—”
“Wasn’t this crash in international waters, Miss O’Brien?”
“Yes, Your Honor, it was.” Gracie paused, but there was no followup question. She took a deep breath and continued. “Captain Rosen is asking the court to block a harmful act, and such a request rests primarily—”
“Which request?” Judge McNaughton asked. “We’ve got three actions here.”
“All of our requests here, Your Honor, are based on the significant potential and ongoing harm to Captain Rosen’s career, his health, and his property interests. To justify a restraining order, I am required to show that if not restrained, the respondent will take actions or continue actions that will cause substantial and irreparable harm. But the burden then shifts to the respondent at the show-cause hearing to show by a preponderance of evidence that the petitioner’s factual claims are wrong. If the respondent fails to meet that burden, the restraining order becomes a temporary injunction. That’s the way we should have been treated by the lower court.”
“And what again was this threat, Miss O’Brien?” Judge McNaughton asked.
April had remained at the back of the courtroom listening to the interruptions as Gracie began describing how Arlie Rosen was being harmed. April glanced down once more at a note that had been handed to her.
Ms. Rosen, you have a visitor in the foyer who says it is vitally important that you come out right now to talk to him. He says he has material evidence pertaining to this case.
April pushed through the double doors as quietly as she could, leaving Gracie’s voice behind and spotting the writer of the note immediately some twenty feet away as he sat and waited on a bench. She felt her jaw drop in amazement. “Ben Cole! What on earth are you doing here?”
He stood and took her hand, shaking it. “Trying to make up for being cowardly.”
“But, how on earth did you find us?”
“I called your dad on Sunday. He told me where you’d be. Am I too late?”
April involuntarily glanced behind her at the closed double doors, then looked at him. “No! It’s just starting, but… we lost yesterday, and this is what Gracie calls a very limited appeal.”
“I’m ready to testify, Miss Rosen.”
She stood, feeling stunned, and immediately wondering how to transmit the information to Gracie not a hundred feet away.
“Follow me into the courtroom,” April said.
Ben hurried ahead of her and held open the door, following her inside to a spot behind the counsel tables. She saw Gracie glance around at her and raise an eyebrow. April pulled her notebook out and wrote a note.
Gracie, Dr. Ben Cole is here from Anchorage to testify! He was on board when the Gulfstream nearly hit us, and when the Albatross was lost. He can corroborate the fact that the Gulfstream came very close to the Albatross.
April leaned over the divider and poked Gracie with the folded note until she reached down and took it, reading it quickly before glancing back to verify Ben was really there.
Gracie cleared her throat and looked up at the judges. “In the district court yesterday, the defendants were allowed to shift the burden of proof illicitly to Captain Rosen by doing little more than declaring that what we said wasn’t true. They offered no proof that government vessels had not been in the recovery area. They offered no reason for confiscating April Rosen’s videotape of the wreckage. They offered no explanation of why FAA radar tapes have been withheld, what’s on them, and whether a second aircraft, which may have clipped Captain Rosen’s aircraft, was in his way that night. They merely came in and said, ‘We deny everything,’ and on that basis alone, their word was taken as being more trustworthy than his. I submit that as a matter of law and equity, that is incorrect, and by itself constitutes an error requiring reversal and reinstatement of the TROs.”