FAA's Project Manager Steve Kelley - Exposed

FAA’S STEVEN (STEVE) KELLEY –
“ANOTHER ONE DOWN LOW…”

A copy of this memorandum with accompanying photographs is posted at:
http://ejectsturgell.blogspot.com/
http://removesturgell.blogspot.com/
http://indictsturgell.blogspot.com/
http://southwestairlinesalmostkilledyou.blogspot.com/

“Guess I need all the help I can get” –
Verbatim quote from FAA’s Steven (Steve) Kelley, ATCS; then-NY TRACON Air Traffic Controller, November 10, 1985, (at time-code 17:17:50, or 5:17:[50] PM).

SUMMARY

The FAA and its “NY/NJ/PHL Airspace Redesign Project Manager”, a former Air Traffic Controller (ATC) named Steven (Steve) Kelley, came to Rockland County, New York with a fake smile, nervous laugh, and a dark heart, in Summer 2007. FAA and Kelley told us deliberately-short-noticed Rockland County residents, that FAA was going to soon run 600 new jumbo jet flights per day low-to-the-ground on approach to Newark (NJ) Liberty International Airport - cutting through the heart of our small county, and flying over densely-populated areas.

We said “No”.

Listening to Steve Kelley and FAA, it was clear that they were lying to us, virtually every chance they got. That is the way of the FAA, otherwise known as “The Tombstone Agency”. I also knew on instinct that something was very odd about Redesign Project Manager Steve Kelley.

I served a Freedom Of Information Act (FOIA) request on FAA for Steve Kelley’s personnel file since 1980. FAA replied by providing me a laughably-sanitized file, and by concealing the key Steve Kelley documents from me. FAA’s FOIA production is available for public view and has been web-posted for months. It is now manifest that the FAA-withheld key Kelley documents relate to a horrific New Jersey plane crash in which 6 people died, back in 1985 – the air calls for which Steve Kelley himself worked, as the NY TRACON air traffic controller on the job.

Indeed, FAA has always concealed, and has always fought, the eliciting of the truth, kicking and screaming, like the extraction of a festering tooth. When the NTSB investigated this 1985 New Jersey plane crash back then, one NTSB official, Investigator-In-Charge Stephan J. Corrie, observed, “I want to thank everybody for their cooperation and patience, however, I think I have to say that in my 15 years in investigating this has been my worst experience in dealing with the FAA”. (On-Record Statement of Stephan Corrie, at Deposition of Thomas H. Edison, November 16, 1985, Page 20; see also Nabisco Brands, Inc.’s Proposed Findings, Probable Cause And Recommendations, page 24[27], 25[28], f.2; May 30, 1986 – “It appears that the FAA has been less than forthcoming and cooperative with the Board in its efforts to gather facts pertaining to this incident”).

Even to this day, FAA STILL plays hide-the-ball, on life-and-death issues.

And even to this day, the NTSB Aircraft Accident Report (AAR) posted in multiple spots on the Internet, is missing its Page 5 and its Page 6. FAA pulled and concealed these pages to protect Steve Kelley. Page 5 incriminates Steve Kelley, including with his quotation as republished up at the top of Page 1 of this memorandum. Yet I found Pages 5 and 6 of the AAR, and I post them herein. Steve Kelley will no longer hide from his role in the 1985 Fairview NJ air crash. And he will have further difficulty hiding from me.

This memorandum exposes the truth about Steve Kelley and the FAA. This memorandum provides the status of a private investigation spanning over one (1) year, of FAA’s current “NY/NJ/PHL Airspace Redesign” “Project Manager” Steven (Steve) Kelley, former ATC. The investigation continues. The interim results are as follows. Those wishing to comment on these findings are invited to submit comments in writing to:
jtormey@optonline.net

As always, all requests for confidentiality will be honored – except for Kelley and senior FAA officials, who are ALWAYS in play.

This memorandum is timely. Apparently short on memory for Lexington, Kentucky 2006, among other crashes, during a recent weekend, FAA wanted America to “celebrate” FAA’s 50th Anniversary as fostering “the safest transportation system in the history of the world”. (Verbatim quote, FAA Acting Administrator Robert A. “Bobby” Sturgell, speech entitled “The Credit Goes To You”, Washington, D.C., August 21, 2008):
http://www.faa.gov/news/speeches/news_story.cfm?newsID=10274
FAA and failed Acting Administrator ‘Bobby’ Sturgell still persist in wanting you to believe that we are somehow in the ‘safest period in aviation history’. As within the last few weeks, there are at least 10 more victimized innocent airplane crash decedents, in Moab, Utah, whose souls will now testify exactly otherwise.

Year 2008’s Moab, IS Year 1985’s Fairview.

This is the story of FAA’s Steve Kelley and the Fairview fatal mid-air crash.

----------------------------------------------------

I. INTRODUCTION

“The Falcon And The Low-Man”

The year was Nineteen Hundred and Eighty-Five (1985). It was the year in which the Paul McCartney and Wings song of same title had warned, over a decade earlier, that “no one” might “be left alive”. In calendar year 1985, the Mr. Mister song “Broken Wings” was relentlessly played on the air as a Number #1 hit. It was still nine (9) years before The Offspring would sing “Keep ‘Em Separated”. The Sean Penn motion picture “The Falcon and the Snowman” was released in theatrical exhibition in 1985. And, another type of “Falcon” was about to die an ugly, unnecessary, and avoidable death, snuffing-out 6 human lives with it.

FAA’s Steve Kelley was involved in the multiple-fatality mid-air crash, as much as FAA is trying to conceal that fact from you now. This memorandum puts the truth in sunlight. Steve Kelley himself is invited to respond, and he can certainly expect an ample rebuttal from this author if and when he does.

In late 1985, on a mid-November early Sunday evening, a Nabisco Brands corporate jet airplane known as a Dassault Falcon DA 50 (N784B, “November 784 Bravo”), and a Piper Archer Cherokee PA[-]28-181 (N1977H) single-engine, propeller-driven, low-wing monoplane aircraft, flew towards each other less than a mile above ground near Teterboro Airport in New Jersey - because they were directed that way by air traffic controllers, including an ATC named Steve Kelley.

Working the position known as “Newark Departure Radar”, Steve Kelley communicated with and guided the DA 50/Falcon identified as “November 784 Bravo” or ‘N784B’, about 3 minutes before it slammed into the Piper, colliding at an altitude of approximately 1,500 feet, approximately 4.5 miles east-southeast of Teterboro Airport. (ATC Group Chairman’s Factual Report, February 5, 1986, Page 1; see also Nabisco Brands, Inc.’s Proposed Findings, Probable Cause And Recommendations, Pages 1[4], 2[5]; May 30, 1986).

“The Falcon en route from Morristown, New Jersey to Toronto, Canada was cleared by the control tower [that is, Kelley and NY TRACON; see, e.g., Deposition of Marquette Bradley, February 24, 1986, Page 62], to make a left, down-wind turn for [R]unway 19 for an intermediate landing at the Teterboro Airport to pick up five company executives. And the [Piper] Archer [N1977H] on local flight from [Essex County] Caldwell Airport [had departed Caldwell at 5:13 PM, and] was cleared by the Teterboro Control Tower to transit the airport traffic area at 1500 feet[,] and had just reported cleared the area when the collision occurred at 5:22 eastern standard time.” (Hearing before Hon. Patricia A. Goldman, Vice Chairman, NTSB, February 24, 1986, Chairwoman Goldman Opening Statement, Page 5; see also Nabisco Brands, Inc.’s Proposed Findings, Probable Cause And Recommendations, Page 1[4); May 30, 1986).

“Examination of the wreckage showed in part that the points of contact between the two air[]planes were with the left wing of the Falcon and the right side of the fuselage of the [P]iper”. (Hearing Before Hon. Patricia A. Goldman, Vice Chairman, NTSB, February 24, 1986, NTSB’s William G. Laynor Opening Statement, Page 13).

“We were able to determine that the propeller of the [P]iper cut through the Falcon’s left wing leading edge slat at about a 75° angle, just inboard of wing rib 12… [a]nd it cut through the front wing spar which resulted in the separation of eight inches from the propeller blade tip.” (Hearing Before Hon. Patricia A. Goldman, Vice Chairman, NTSB, February 24, 1986, NTSB’s Stephan J. Corrie’s Opening Statement, Pages 13, 14).”

Civil twilight had ended at 5:10 PM EST. (Nabisco Brands, Inc.’s Proposed Findings, Probable Cause And Recommendations, Page 1[4); May 30, 1986). Official sunset in New York City, about 5 miles east of the accident site, on November 10, 1985, had been at 1643, or 4:43 P.M. At the time of the crash, it was “bright skyline, clear skyline.” (Deposition of ATC Barbara E. Bryan, November 15, 1985, Page 11). It wasn’t twilight – it was night time. (Deposition of ATC Barbara E. Bryan, November 15, 1985, Page 17). The crash occurred at 1722 (5:22 P.M.) local time, 40 minutes after sunset.

The Falcon was making but a short hop-skip flight from Morristown to Teterboro, anticipated to be under 10 minutes in duration. See Feb. 24, 1986 Deposition of Steve Kelley Before The NTSB Board Of Inquiry, (“Feb. 24, 1986 Kelley Deposition”), Page 123.

As admitted by Steve Kelley in his November 15, 1985 deposition taken in the “Administrative Fact-Finding Investigation” 5 days after the Fairview crash, (Nov. 15, 1985 Kelley Deposition, Page 6):

“I worked that aircraft [November 784 Bravo] as a departure of Morristown Airport, Morristown, New Jersey”.

And:

“I advised [November 784 Bravo] he was released… I… called Morristown [T]ower and released the air[]craft”. (Feb. 24, 1986 Steve Kelley Deposition, Page 93).

And:

“At approximatley[sic] 2215 GMT, I released N784B[,] a Falcon 50, off [R]unway 23 at Morristown. I radar[-]identified him and vectored him for the VOR DME A approach to Teterboro. I [‘]coordinated[‘] with the arrival position to keep the aircraft for the approach. The aircraft was cleared for the approach and switched to Teterboro 2 miles from C[LIFO].” (Signed “Personnel Statement” of Steven Kelley (SR), ATCS, New York TRACON, dated November 10, 1985).

Note: The ‘VOR DME A’ approach, apparently discontinued after the Fairview crash, took inbound aircraft “across the airport” and over the VOR transmitter. (Nabisco Brands, Inc.’s Proposed Findings, Probable Cause And Recommendations, Page 20[23]; May 30, 1986).

And:

“The Teterboro local controller granted the requested clearance and directed 77H to report one mile west of [Teterboro Airport]… At the time, Falcon N784B was following radar vectors given to it by the New York Terminal Radar Approach Control (TRACON; that is, Steve Kelley) onto the final approach to Teterboro Airport… by reason of various FAA mechanical and human information systems, the Teterboro local controller was unaware that the Falcon was cleared inbound on the VOR-DME-A approach and would arrive in the same airspace (i.e., over the VOR-DME transmitter) at about the same time as 77H. (Nabisco Brands, Inc.’s Proposed Findings, Probable Cause And Recommendations, Page 6[9]; May 30, 1986).

It was not an incredibly busy night for Kelley – a “typical good VFR day”, “typical weekend”, “good…conditions”, an “average” night. (Nov. 15, 1985 Kelley Deposition, Page 28). “I was not very busy”. (Nov. 15, 1985 Kelley Deposition, Page 32; see also, Page 35). “[A] quiet time in that position” with no distractions. (Nov. 15, 1985 Kelley Deposition, Page 36). The “traffic to Teterboro at that point was not heavy”. (Feb. 24, 1986 Kelley Deposition, Page 111). Workload was “not” a factor. (Feb. 24, 1986 Kelley Deposition, Pages 120, 134; see also Deposition of Joseph Paparazzo, February 25, 1986, Page 17).

November 784 Bravo departed, and Kelley, himself known by “operation initials ‘SR’”, “issued radar vectors”. (Nov. 15, 1985 Kelley Deposition, Pages 13, 14):

“Steve Kelley: ‘The aircraft was turned eastbound, I believe the heading was 080, and then at a point west of Newark or southeast of the Morristown Airport, I turned him northbound or a ten heading for vectors, for the approach. I issued the weather and the approach in use and [‘]coordinated[‘] to take the aircraft east of Essex County Airport [Caldwell, NJ] through their airport traffic area at 2000 feet, and turned him onto the final approach course for the bo[a]rd and the Alpha, which is Teterboro 305 rating[radial?], and cleared him for the approach’.

Q: ‘After you cleared the aircraft for approach, what did you do?’

Steve Kelley: ‘I switched him to Teterboro.’” (Nov. 15, 1985 Kelley Deposition, Page 13).

And as Kelley tried to explain in his February, 1986 Deposition:

“Okay the route of flight off Morristown Airport was departing [R]unway 23 and the initial heading given off the runway was a turn to heading of 080 or an eastbound heading. And at that time then he was turned northbound, or I believe the heading was 010 and vectors for the final approach of course which is the VORD and the alpha approach at which time somewhere just east, northeast of Caldwell the aircraft was turned east[]bound to intercept the final and to take over on the instrument approach”. (Feb. 24, 1986 Kelley Deposition, Page 103.

Kelley “radared and identified” the aircraft, and issued the aircraft traffic advisories. (Nov. 15, 1985 Kelley Deposition, Pages 26, 27). In testimony Kelley confirmed that he elected not to issue a visual approach to Eight Four Bravo because, in Kelley’s words, “[t]here was no request made” – and Kelley “did not point out traffic”. (Nov. 15, 1985 Kelley Deposition, Page 23). Then, Kelley gave the pilot a “shortcut”… “just to get him into the airport”. (Nov. 15, 1985 Kelley Deposition, Page 35). “The departure controller (Kelley) issued radar vectors to 84B to intercept the VOR-DME A approach to Teterboro. (305° radial)… The TRACON departure controller (Kelley) turned 84B on to final approach to Teterboro Airport at 5:16:55 PM EST and cleared 84B for the VOR DME A approach.” (Nabisco Brands, Inc.’s Proposed Findings, Probable Cause And Recommendations, Pages 8[11], 9[12]; May 30, 1986).

Five human lives were contained on those two planes, and more soon-to-be-affected people, unbeknownst to them until the impact of the two planes colliding, were awaiting the horrific event on the ground. When the planes collided, all 5 in the air died. One more was killed on the ground.

The other ATCs working that night also executed signed “Personnel Statements” soon after the crash, indicating that they observed “an explosion” (Kenneth Millan, Teterboro Tower); “a small explosion east of the airport” (Barbara E. Bryan, Teterboro Tower); and “what appeared to be an electrical transformer exploding – I then observed what looked like two fire[]works exploding.” (Joseph Paparazzo, SATCS Area Supervisor, Teterboro ATC Tower).

The aftermath in the Teterboro Tower:

...“Alright don’t let anybody else into Teterboro”…

...“Just double check that end of it and we have the New York [uh] police checking the [uh] river [uh] they may have seen LaGuardia [T]ower may have seen two aircraft hit out there they’re not sure”…

...“Okay we’ve got something out there it looks like a nice fire on the other side of the ridge out there [uh] we can’t tell because of the ridge we can’t tell what it is”. (Teterboro Air Traffic Control Tower Coordinator Transcript, Pages 4, 5).

(A “nice” fire?).

Up close, it was worse. Wings broke in a brutal mid-air collision, and as the McCartney song forewarned, no one was left alive in these two airplanes that crashed into each other over Fairview, New Jersey on November 10, 1985. Fourteen (14) people, including some on the ground, were maimed, and six (6) of those fourteen (14) people were killed:

“The flightcrew, the only occupants aboard the DA50, and the pilot and two passengers onboard the PA28 were killed”.

See “Technical Report Documentation Page, the 100-Page National Transportation “Safety” Board (NTSB) written and published “Aircraft Accident Report” (“AAR”) on the Mid-Air Fairview Aviation Disaster of November 10, 1985, “PB87-9 10405”, In re “MIDAIR COLLISION OF NABISCO BRANDS, INC., DASSAULT FALCON, DA50, N784B AND AIR PEGASUS CORPORATION PIPER ARCHER, PA28-181, N1977H, FAIRVIEW, NEW JERSEY, NOVEMBER 10, 1985, NTSB/AAR-87105” (hereafter sometimes referred to as “Aircraft Accident Report”, or, simply, “AAR”).

The carnage was not limited to that which happened in the air. The DA50 Falcon crashed into an apartment building, not just killing one resident[,] but also seriously injuring two bystanders. (Page “–v-”, AAR).

The bodies and airplane parts were strewn over a several-mile-wide area of Fairview, New Jersey and Cliffside Park, New Jersey. Death rained and reigned on a Sunday, tearing apart people’s lives, and ruining families. Forever.

II. STEVEN (STEVE) KELLEY OF THE FAA

Twenty-three (23) years ago, the FAA had not yet commenced recruiting kids out of high school to be air traffic controllers, like the FAA is doing today in Year 2008. Query how many more Fairviews we the American public will be subjected to now, particularly if the FAA lets Steven (Steve) Kelley remain at the helm as Project Manager of the NY/NJ/PHL Airspace Redesign, and place flight paths over densely-populated areas. After all, we already know what happened when Steve Kelley was at the proverbial helm of the NY TRACON (Teterboro) airspace back on November 10, 1985. What happened, was death.

“TRACON” is an aviation acronym standing for “Terminal Radar Approach Control”. According to Page 72, Appendix B (“Personnel Information”) of the AAR, the TRACON Departure Controller physically-situated in Westbury (sometimes cited in the record as Garden City), New York (P.1, AAR) was none other than “Full Performance Level Controller Steven Kelley (Departure Controller), 32 [years of age]… hired by the FAA on the New York TRACON in January 1982 as an ATC [‘]specialist[‘]”. As identified in the Nov. 15, 1985 Kelley Deposition, on Page 2, he is identified as “Steven Kelley, 52 Ridgewood Avenue, Holtsville, NY”. (Other ATCs believe that Kelley may have since moved his residence to a houseboat). And as identified in ATC Group Chairman’s Factual Report, February 5, 1986, Page 5: “Steven Kelley (SR); DOB: December 7, 1952; “ATC Specialist GS-2152-11”.

The NTSB included Steve Kelley and the TRACON within the scope of their investigation of Fairview, identifying as one of its areas of “concentration” – to wit, “the performance of the New York Terminal Radar Approach Control Facility”. (Hearing Before Hon. Patricia A. Goldman, Vice Chairman, NTSB, February 24, 1986, Chairwoman Goldman Opening Statement, Page 6).

Yet Kelley wasn’t just your everyday post-PATCO scab. From Page 5 of the Nov. 15, 1985 Kelley Deposition, in Kelley’s own words:

“I was a theatre education major at the University of Minnesota, and I entered the FAA. I’m a private pilot [note: no instrument rating at the time], also while attending college. I entered the FAA in January of 1982”.

Born on, of all days, Pearl Harbor Day, Steve Kelley appears to have graduated from the University of Minnesota in 1974. Starkly absent from his testimony is what Kelley did between 1974 and 1982, although assuming that he came to New York City with a theatre ed. degree, anyone in the NYC area at the time can probably guess. Other ATCs believe Kelley may have endeavored to be an actor during the 1970’s.

Kelley loved drama. When asked what he did in the days and hours prior to the Fairview Crash:

“…Friday, I worked a seven to three shift at the TRACON. Friday night I attended a play in the [C]ity. Saturday was basically just a day at home, and the whole day, and Sunday morning I was doing jobs around the house…” (Nov. 15, 1985 Kelley Deposition, Page 36).

And presaging decades of other FAA, USDOT, and NTSB propaganda yet to come, Steve Kelley is further officially identified on Pages 72-73 of the AAR as follows:

“Full Performance Level Controller Steven Kelley (Departure Controller), 32, was hired by the FAA on the New York TRACON in January 1982 as an ATC specialist. He obtained his initial training at the FAA Academy in Oklahoma City, Oklahoma. He achieved his full performance level status in November 1982 in the Newark [R]adar [S]ector. He was medically qualified for duty”.

It’s the same guy. ATC. Theatre buff.

And in other words, even as far back as 1985, Steven Kelley was not a kid. Steve Kelley was old enough to know better. And the FAA put lives in his hands, notwithstanding all the conflict and turmoil in his personal life which will be subject to a later and subsequent updated briefing.

Steve Kelley no longer works as an Air Traffic Controller. Thank God. Query if Steve Kelley was ever even allowed to work on the boards again as an Air Traffic Controller, after the 1985 Mid-Air Fairview Aviation Disaster. Maybe he’ll tell us.

As the FAA often does with its failures, they in effect moved Steve Kelley over to desk work and made him a “Supervisor”. That’s right, the FAA kicked him upstairs. In a “Notification of Personnel Action” dated 4-30-87, Kelley was promoted to Supervisor effective back to 03-01-87. While it is not yet clear if this post-Fairview move was instigated by FAA or by Kelley’s own request, we’ll uncover that fact soon enough, too.

Steve Kelley is reported to have thereafter left NY TRACON at around Year 2000, exiting as a Supervisor or “Supe” in the JFK Sector. Then, as many ATCs have described it, Steve Kelley “joined the Dark Side” of FAA management, and became Airspace Redesign Project Manager. The psychological explanation? He’s trying to blame the airspace for his own participation in the 1985 fatal Fairview mid-air, just like at the time in his deposition testimony he insinuated blame to the pilots for flying too fast. (See below). As for Kelley since joining the dark side of FAA management thereafter, query how dark it was, already, at 5:50 PM on November 10, 1985 in Fairview, New Jersey. Query the nether regions that FAA’s Steve Kelley had already explored by that point in time.

Now, fast-forward to Year 2008. Now, the FAA is telling us that this VERY SAME STEVE KELLEY should somehow be accorded the discretion to affect the health and lives of up to 30,000,000 people in the Northeast, by mapping up to 600 new flight paths per day over my home town and that of many other people. 30 million. That’s 5 million times as many people as were killed in Fairview New Jersey in 1985. Query how many deaths could potentially be caused by a sloppy, poorly-executed Airspace Redesign?

Has Kelley already handled the Redesign just like he handled Fairview?

If so, FAA should shortly have $53.5 million of tainted Redesign software for sale.

That’s right. You’re reading and copying it correctly. Steven (Steve) Kelley is now the FAA’s “Project Manager” for the unlawful abomination otherwise known as the NY/NJ/PHL Airspace Redesign (“Redesign”). Kelley and his FAA cronies seek to route new proposed FAA flight paths over densely-populated residential neighborhoods in Rockland County, New York, and elsewhere, while telling us that the Redesign enhances safety and has been cleared for national and homeland security purposes. The fact of the matter is, the FAA’s Redesign is a harmful aeromercantile scheme designed solely to make more profits for the airlines at the expense of our health and lives. Moreover, the Redesign for the NY/NJ/PHL area is but the first of many intended FAA airspace redesigns, and the cities currently targeted for FAA redesigns include not only New York and Philadelphia, but also Los Angeles, San Francisco, Las Vegas, Chicago, and Charlotte. See the FAA’s “Draft 2009-2013 Flightplan” at FAA’s own website, currently located at:
http://www.faa.gov/about/plans_reports/media/draft_flight_plan.pdf

In public meetings before hundreds and indeed thousands of people throughout Year 2007, on audiotape and videotape, FAA’s Steve Kelley laughingly boasted an Etheridgian “Yes I Am” “a federal bureaucrat” - and he nervously laughed when he referred to himself publicly as “A RECOVERING AIR-TRAFFIC CONTROLLER”. Now we know one of the things that he is recovering from. He’s recovering from Fairview, New Jersey, 11/10/85. Query if Kelley’s own conscience will EVER recover from his role in that aviation disaster, a disaster in which 6 people were killed, and more people physically and emotionally maimed with their respective lives changed forever.

III. ACCOUNTS OF THE 1985 MID-AIR FAIRVIEW AVIATION DISASTER

The 1985 Mid-Air Fairview Aviation Disaster is logged-in, on page 11 of the 47-page NTSB roster of “Aviation Accidents from more than 10 years ago”:
http://www.ntsb.gov/publictn/A_Acc2.htm
“Title: Midair Collision of Nabisco Brands, Inc., Dassault Falcon, DA50, N784B and Air Pegasus Corp., Piper Archer, N1977H, Fairview, NJ[,] Nov. 10, 1985.
NTSB Report Number: AAR-87-05, adopted on 5/4/1987
NTIS Report Number: PB87-910405”

Now, don’t be surprised if the NTSB mysteriously pulls the post or its website down by the time you are reading this. Don’t worry. If that happens, call me at 1-212-410-4142. Fax me at: 1-212-410-2380. E-mail me at:
jtormey@optonline.net
I’ll fax or e-mail you any of the documents cited herein.

The 1985 Mid-Air Fairview Aviation Disaster itself, did not by any means slip under the public’s radar. The calamity was chronicled in the New York Times and by writer Richard Witkin, in, inter alia, a thorough newspaper article entitled “‘85 PLANE CRASH LAID TO FAILURE BY CONTROLLERS”, By journalist Richard Witkin, Published: March 18, 1987 (hereafter, the “New York Times Article”, or, “Times Article, 03/18/87”).

http://query.nytimes.com/gst/fullpage.html?res=9B0DE2DF1239F93BA25750C0A961948260
The full text of the New York Times article is also re-printed below. Unlike my intuition about what the NTSB and others might do, I trust that the New York Times won’t be taking down their electronic post, anytime soon. After all, a lot of the newspaper’s writers reside within the NY/NJ/PHL Airspace. A lot of them fly, too.

The New York Times article discusses how the NTSB, following an investigation, found one probable cause of the 1985 Mid-Air Fairview Aviation Disaster to be a “breakdown in [air] traffic control”. To quote, in relevant part:

“The National Transportation Safety Board determines that the probable cause of the accident was a breakdown in air traffic control coordination which resulted in an air traffic conflict and the inability of the DA50 flightcrew to “see and avoid” the other aircraft…”. “Technical Report Documentation Page”, AAR.

The FAA was also itself found at fault, “failing to [e]nsure that controllers followed prescribed procedures in guiding planes”. An NTSB Board Member opined that “there was information that could have been used to avoid the accident…”. Times Article, 03/18/87. The AAR further explains:

“There were six air traffic control specialists involved in providing arrival air traffic service including the [Newark (Radar Sector), New Jersey] Departure Controller [Steve Kelley, “#1”]. The positions staffed in the Teterboro (TEB) control tower at the time of the accident were [L]ocal [C]ontrol [#2], [G]round [C]ontrol [#3], [F]light [D]ata/[C]learance [D]elivery [#4], [C]oordinator [#5], and [S]upervisor [#6]. Except for the [S]upervisor[,] who was hired by the FAA in 1958, all of the other controllers were hired [post-PATCO] after 1981”. (P.15, AAR).

Yet of the 6, “[t]he TEB [C]oordinator [#5] was the ONLY controller that provided a urine sample 5 days after the accident for toxicological examination. The tests were negative for alcohol and drugs”. (P.21, AAR). What about the others? Query why apparently none of them were tested.

Steve Kelley was the New York TRACON controller – otherwise referred to in the record (technical precision of reference vel non, notwithstanding) as the “TRACON Departure Controller” or “Newark (Radar Sector) Departure Controller”.

In Kelley’s own words:

“As the departure radar controller in the Newark sector I’m responsible for IFR and VFR departures [out] of Newark as the primary airport and also Teterboro, Essex County, Caldwell, and Morristown. I am also responsible for VFR and through flights TCA through my air space.” As for aircraft operating below the VFR aircraft: “In that area if they were in contact with me then I would be providing VFR advisories in that area”. (Feb. 24, 1986 Kelley Deposition, Page 93).

And:

“Q: ‘You as a radar controller provide landing sequence?’

Steve Kelley: ‘Well, on IFR arrivals I’m responsible for the separation of IFR arrivals to Teterboro Airport, yes”… I am responsible for the approach sequence.’ (Feb. 24, 1986 Kelley Deposition, Pages 118, 119).

And:

“Q: ‘Mr. Kelley in response to the question of what happened after you turned to Teterboro you said you monitored the plane once you turned it over to tower frequency. Would you describe what you include in your monitoring role… what the responsibilities would be?’

Steve Kelley: ‘Okay. Well I would watch the aircraft’s flight path and observe that in this approach[sic] specific approach it would proceed directly overhead the airport at which time it would make a left turn for the runway and enter it downwind. I monitor the aircraft’s flight path until overhead the airport’”. (Feb. 24, 1986 Kelley Deposition, Page 147).

And, in the most significant Kelley acknowledgment in the entire record:

“Q: ‘Where did your responsibility end for 84 [B]ravo?’

Steve Kelley: ‘Responsibility for the air[]craft ends at the runway.’ (Feb. 24, 1986 Kelley Deposition, Page 120).

A layperson will often ask and want to know why a controller in Westbury (or Garden City), Long Island has jurisdiction over flight traffic miles away and across the Hudson River near Teterboro, New Jersey.

The AAR, tells us:

“The New York TRACON (Newark [Radar] Sector) has approach control jurisdiction over the airspace between Morristown [New Jersey] and TEB. An automated radar tracking system ([“]ARTS IIIA[“]) computer is used at the New York TRACON. This system has the capability to track all primary radar targets and transponder[-]equipped aircraft. The computer displays alpha-numeric information on the radarscope at the controller’s position. This information is recorded and stored on computer discs as part of the continuous data recording (CDR) feature in the facility.” (P. 23, AAR).

Therefore, Steve Kelley, too, while physically-situate in Westbury (Garden City), New York, had “the capability to track all primary radar targets and transponder[-]equipped aircraft” in the relevant Teterboro area. “Mapquest” cites Teterboro as 13.61 miles away from Newark, a little more than 4 minutes by airplane.

(It should be noted here that the FAA still uses radar for tracking primary, transponder-bearing aircraft. Yet the “Next Gen” system, if ever implemented and at a total cost of US$40 billion and up, would in theory do away with the need for radar tracking, using GPS technology to track and separate airplanes).

To continue, regarding ATC failure leading to the 1985 Fairview crash, from Page 37, AAR:

“In review of the facts, conditions, and the circumstances in the accident, THE SAFETY BOARD CONSIDERED THE FOLLOWING ELEMENTS IN ITS ANALYSIS OF THE ACCIDENT: (1) THE AIR TRAFFIC COORDINATION AND MANAGEMENT WHICH RESULTED IN THE LOCAL CONTROLLER BEING UNAWARE OF THE DA50’S INBOUND FLIGHT; [emphasis supplied] (2) the complex air traffic situation created by the design of the TCA with respect to the TEB airspace and the authorization of VFR overflights at conflicting altitudes, and the mix between low[-performance] and high[-]performance general aviation aircraft; (3) the contribution of unclear or misleading traffic advisories; (4) the reliance on achieving visual separation with the use of the ‘see and avoid’ concept in a high density air traffic airspace; and (5) the performance of the pilots in the conduct of their flights.”

In reading this memorandum, ask yourself, to what extent was Steve Kelley in NY [Newark Sector] TRACON responsible for the “Local Controller being unaware of the DA50’s inbound flight”? Some ATCs will weigh-in on that answer, further below.

Also from Page 37, AAR:

“The accident sequence of events began when the ARTS computer did not automatically acquire the DA50 after it departed Morristown because it left about 19 minutes earlier than proposed on the flightplan. As a result, the DA50’s identification and flightplan was not listed in the Departure Controller’s tabular list [note: that effectively translates to, ‘not listed in Steve Kelley’s tabular list’]. Normally this would have occurred automatically. As a result, the Departure Controller [Steve Kelley] was required to initiate a manual track of the airplane which provided an identification tag, but that action did not activate an automatic transmission of data on the DA50. Therefore, it did not generate a departure message to the central computer which, in turn, did not send a machine-generated flight strip to the TEB control tower. THE SAFETY BOARD BELIEVES THAT THE LACK OF A FLIGHT STRIP IS SIGNIFICANT IN LIGHT OF THE EVENTS THAT LED TO THE ACCIDENT BECAUSE IT COULD HAVE SERVED AS A BACKUP AND A REMINDER WHEN THE COORDINATOR FAILED TO ALERT THE OTHER CONTROLLERS OF THE DA50’S INBOUND FLIGHT.”

This above AAR text seems to suggest that Steve Kelley could have done something affirmative - such as cause the issuance of a “departure message”, or cause the issuance of a machine-generated “flight strip” - to prevent the 1985 Mid-Air Fairview Aviation Disaster. Some ATCs polled below agree. Others disagree.

But even Steve Kelley himself admits he could have pushed out the strip:

“Well there are other ways to get the track to auto acquire and [uh], there are manual ways to go around the auto acquisition process. I can call over to data or myself enter a forced function to force that call sign into the tabular list, and had he been going to some other location or into the center’s section I would have done so”. (Feb. 24, 1986 Kelley Deposition, Page 100).

So why was the NTSB and its investigatory conclusions ultimately fairly kind to Kelley? The NTSB seems to exculpate Steve Kelley in the very next paragraph of its AAR following the Page 37 quotation above, wherein the NTSB suggests that either: (A) Kelley may have hyper-technically complied with the applicable ATC rules, or (B) even if he didn’t, any failure of Kelley’s was excused as overtaken by the Falcon flight crew’s own flight-speed and conduct:

“Before the DA50 was released for takeoff at Morristown, the Departure Controller [again, Steve Kelley] verbally coordinated the airplane’s impending arrival with the TEB coordinator according to established procedures. There was no requirement for the [Departure] [C]ontroller [Steve Kelley] to amend the departure time of the airplane, and he [Steve Kelley] effected the necessary coordination with TEB by landline as required. SINCE RADAR COVERAGE BY THE TRACON DOES NOT EXTEND DOWN TO THE RUNWAY AT TEB, THE DEPARTURE CONTROLLER [STEVE KELLEY] WAS REQUIRED TO TELL THE FLIGHTCREW THAT RADAR SERVICE WAS TERMINATED WHEN HE TRANSFERRED CONTROL TO TEB. HOWEVER, BECAUSE THE DA50 CREW REPORTED TO TEB THAT IT HAD PASSED CLIFO, THE CONTROLLER’S [KELLEY’S] FAILURE TO DO SO WAS NOT CONSIDERED A FACTOR IN THE ACCIDENT”. [Emphasis added] (Page 37, AAR).

Note: “CLIFO” is a location checkpoint, (Human Performance Group Factual Report Of Investigation, NTSB, Docket No. SA-489, Exhibit No. 14-A, dated January 10, 1986, Page 2); a compulsory reporting point (Deposition of Lenard Greenberg, February 24, 1986, Page 199); and a final approach fix (Deposition of Joseph Paparazzo, February 25, 1986, Page 31).

Still, the above passage of the AAR suggests that Steve Kelley complied with one required procedure, but not another. Was this the only Steve Kelley failure, and was it de minimis? Ask a Controller, read the opinions thusfar collected below, and you decide.

IV. THE DEATHS, DAMAGE, AND DESTRUCTION

“The wreckage from both aircraft was distributed over a 4 by 8 block residential area. The wreckage of the Archer came to rest in Fairview, New Jersey and the main wreckage of the Falcon came to rest in Cliffside Park, New Jersey. Ground fire damaged a house and a car where the Archer crashed. Three houses were destroyed and two adjacent buildings were severely damaged at the Falcon crash site. Several other cars were also damaged”. (Hearing Before Hon. Patricia A. Goldman, Vice Chairman, NTSB, February 24, 1986, Chairwoman Goldman Opening Statement, Page 6).

The New York Times Article also paints the picture of what happened as a result of the concatenation of ATC failures leading to the 1985 Mid-Air Fairview Aviation Disaster:

“Touching off a fireball visible for miles, the planes plunged into Fairview and Cliffside Park, N.J., small communities across the Hudson from the Upper West Side of Manhattan”. Times Article, 03/18/87.

From Page 17, AAR:

“The main wreckage sites of the airplanes were about 700 feet apart… The wreckage was distributed over a four by eight city block area. Most of the wreckage scatter was concentrated in a six block area around the intersections of Walker Street and Sixth and Seventh Streets in Fairview.

“The main wreckage of the DA50 came to rest at 228, 230, and 232 Cliff Street in Cliffside Park… These three residences and the airplane were destroyed by the severity of the impact forces and subsequent fire. Two adjacent buildings and several automobiles were heavily damaged by fire and flying debris. One resident was killed at 228 Cliff Street and two bystanders were seriously injured. The left wing of the DA50 struck a light pole, landed at the intersection of Anderson Avenue and Kamena Street, and partially burned.

“The main wreckage of the PA28 came to rest on the sidewalk in front of an apartment on Kamena Street in Fairview. It hit the ground from a near vertical descent. There was some impact damage and substantial fire damage to a porch and a nearby parked automobile… The engine with the propeller and spinner attached penetrated the roof of a cabana in a near vertical angle in the backyard of a residence on Third Street. No one was killed or injured from the wreckage of the PA28.

“The accident sites were surveyed, and the wreckage was examined and documented and moved to TEB for further examination. The physical evidence showed that the leading edge of the left wing of the DA50 at about midspan collided with the right side of the engine compartment of the PA28…”

Steve Kelley is not mentioned by name in the New York Times Article. Yet the “bypass” of the “strip” system by the Falcon’s early takeoff, and the “no warning” to the Local Controller described in the below New York Times Article excerpt, are topics with which Steve Kelley is intimately familiar, and topics with which Steve Kelley may have to live, for the rest of his life:

“The report said the events began when the [Falcon] took off from nearby Morristown, NJ, about 19 minutes before originally scheduled. The takeoff bypassed a computerized “flight strip” system. The strip, showing the plane’s identity and its intention to land at Teterboro, would have been automatically sent to Teterboro. The [C]ontroller who directed the plane had no warning it was coming… The [Local] [C]ontroller was busy with five other planes. BUT ADVANCE NOTICE OF THE JET’S ARRIVAL MIGHT HAVE ALLOWED HIM TO TAKE FIRMER ACTION TO AVERT A CONFLICT, THE [NTSB] BOARD SUGGESTED”. [Emphasis added]. Times Article, 03/18/87.

V. THE INTERNET RESOURCES

You can look up the 1985 Mid-Air Fairview Aviation Disaster in the NTSB’s Internet database using as search-parameters the “Fairview, New Jersey” location of the incident, and the “November 10, 1985” date, at:
http://www.ntsb.gov/ntsb/query.asp
The first Internet page will read:

“2 records meet your criteria.
11/10/1985
FAIRVIEW, NJ
PIPER PA-28-181
N1977H
Fatal(6)
Part 91: General Aviation

11/10/1985
FAIRVIEW, NJ
DASSAULT FALCON 50
N784B
Fatal(6)
Part 91F: Special Flt Ops.”

Then you can click on the hyperlinks and read more about it. Here’s the Piper’s “Probable Cause” “Current Synopsis” from the NTSB’s database, at least as the NTSB had it posted on August 17, 2008:

http://www.ntsb.gov/ntsb/brief.asp?ev_id=20001214X38212&key=2
NTSB Identification: DCA86AA004B.
The docket is stored on NTSB microfiche number 28588.
14 CFR Part 91: General Aviation
Accident occurred Sunday, November 10, 1985 in FAIRVIEW, NJ
Aircraft: PIPER PA-28-181, registration: N1977H
Injuries: 6 Fatal, 2 Serious.
DASSALT[sic] FALCON 50 (D50), N784B, WAS ON VOR/DME-A APCH AT DUSK TO CIRCLE/LND AT TETERBORO (TEB), AS PIPER PA-28, N1977H, WAS TRANSITING ARPT TRAFFIC AREA (ATA) FM WEST TO EAST AT 1500’ IN VFR (NO FLT PLN). PA-28 PLT WAS CLRD THRU ATA BY TEB TWR (STAYING BLO TCA FLOOR AT 1800’). LCL CTLR (LC) WAS ALSO HANDLING SVRL OTR ACFT & RDO FREQ WAS CONGESTED. ARTS COM[]PUTER DIDN’T ACQUIRE D50’S EARLY DEP FM MORRISTOWN. TRACON HAD COORDINATED D50 ARRIVAL WITH TEB TWR, BUT TWR COORDINATOR& CLNC DELIVERY CTLR FAILED TO SPECIFICALLY NOTIFY THE LC. LC WAS SURPRISED WHEN D50 CREW (ARRIVING AT A SOMEWHAT FAST SPEED) CONTACTED HIM. LC GAVE TRAFFIC INFO TO D50 CREW, BUT PROVIDED MISLEADING ADVISORY CONCERNING THE PA-28’S DRCTN OFFLT. SUBSEQUENTLY, D50 & PA-28 CONVERGED & COLLIDED AT EDGE OT ATA, 4.5 MI ESE OF ARPT. D50 CRASHED IN APARTMENT BLDG, KILLING 1 & INJURING 2. EVIDENCE OF BREAKDOWN IN ATC COORDINATION; ATC MANAGEMENT AT TEB FAILED TO RECOGNIZE & CORRECT OPERATIONAL PROBLEMS. BRITE RADAR AT TEB TWR DID NOT DISPLAY ALPHA NUMERIC DATA OR RANGE MARKS.

The National Transportation Safety Board determines the probable cause(s) of this accident as follows:
CREW/GROUP COORDINATION..INADEQUATE..ATC PERSONNEL(LCL/GND/CLNC)
TRAFFIC ADVISORY..IMPROPER..ATC PERSONNEL(LCL/GND/CLNC)

Contributing Factors
SUPERVISION..INADEQUATE..ATC PERSONNEL(SUPERVISOR)
PROCEDURES/DIRECTIVES..NOT FOLLOWED..ATC PERSONNEL(LCL/GND/CLNC)
LIGHT CONDITION..DUSK
http://www.ntsb.gov/ntsb/brief.asp?ev_id=20001214X38212&key=2

Here’s a lay translation:

NTSB Identification: DCA86AA004B.
The docket is stored on NTSB microfiche number 28588.
14 CFR Part 91: General Aviation
Accident occurred Sunday, November 10, 1985 in FAIRVIEW, NJ
Aircraft: PIPER PA-28-181, registration: N1977H
Injuries: 6 Fatal, 2 Serious.

A Dassault Falcon 50 (D50, N784B) 3-engine corporate jet was on a VOR (Very High Frequency [VHF] Omnidirectional Range, a radio navigation aid used in aviation) DME-a (Distance-Measuring Equipment, a transponder-based radio navigation technology) approach at dusk to circle to land at Teterboro Airport (located in Teterboro, New Jersey, in the Boroughs of Teterboro, Moonachie, and Hasbrouck Heights, and in Bergen County) (code-acronym “TEB”), as a Piper PA-28, N1977H (a single-engine Piper Archer piston plane) was transiting through the Airport Traffic Area (ATA) from West to East at an altitude of 1,500 feet in VFR (“Visual Flight Rules”, a set of aviation regulations under which a pilot may operate an aircraft in weather conditions sufficient to allow the pilot, by visual reference to the environment outside the cockpit, to control the aircraft’s attitude, navigate, and maintain safe separation from obstacles such as terrain, buildings, and other aircraft). Though the Falcon had filed an Instrument Flight Rules (“IFR”) flight-plan (P.5, AAR), the Piper Archer was operating under Visual Flight Rules (“VFR”) without a flight plan; had not filed a flight plan for this flight; and “the pilot did not tell the control tower his intentions after departure nor was he required to do so”. (P.7, AAR).

[Note: an IFR must be under ATC instructions, whereas a VFR may be worked by ATC based on workload].

The Piper Archer pilot was cleared through the Airport Traffic Area by Teterboro Tower, to stay below the Terminal Control Area “floor” at 1,800 feet. The Local Air Traffic Controller (LC) was also handling several other aircraft at the time, and the radio frequency was congested. (P. 18, AAR: “… because there were several airplanes operating at TEB the evening of the accident, the radio frequency was congested”).

The ARTS computer did not “acquire” the Falcon’s 19-minutes-early departure from Morristown, New Jersey. NY TRACON [note: Steve Kelley’s domain] had coordinated the Falcon’s arrival with Teterboro Tower, but the Tower Coordinator and Clearance Delivery Controller failed to specifically notify the Local Controller. The Local Controller was therefore surprised when the Falcon’s crew, arriving at a somewhat fast speed, contacted him. The Local Controller gave traffic information to the Falcon’s crew, but the Local Controller also provided a misleading advisory concerning the Piper Archer’s direction of flight. Subsequently, the Falcon and the Piper converged and collided at the edge of the Airport Traffic Area, 4.5 miles East-Southeast of the airport. The Falcon crashed into an apartment building below, killing 1 person and injuring 2 other persons. There was evidence of a breakdown in Air Traffic Controller coordination. Air Traffic Control management at Teterboro failed to recognize and correct operational problems. BRITE radar (Bright Radar Indicator Terminal Equipment) at Teterboro Tower did not display alphanumeric data or range marks.

The National Transportation Safety Board determines the probable cause(s) of this accident as follows:
CREW/GROUP COORDINATION WAS INADEQUATE:
ATC PERSONNEL(LOCAL/GROUND/CLNC)

TRAFFIC ADVISORY WAS IMPROPER: ATC PERSONNEL(LOCAL/GROUND/CLNC)

Contributing Factors
SUPERVISION WAS INADEQUATE: ATC PERSONNEL (SUPERVISOR)
PROCEDURES/DIRECTIVES NOT FOLLOWED: ATC PERSONNEL(LOCAL/GROUND/CLNC)
LIGHT CONDITION:DUSK

Then you can read the NTSB’s “Factual” Report on the Piper, which I have backed up on one of Quiet Rockland’s own websites in the event that NTSB tries to take theirs down:
http://www.ntsb.gov/ntsb/GenPDF.asp?id=DCA86AA004B&rpt=fa

http://relocatesturgell.blogspot.com/

Then, the NTSB’s “Probable Cause” “Brief of Accident” on the Piper, which I have also backed up on one of Quiet Rockland’s own websites in the event that NTSB tries to take theirs down:

http://www.ntsb.gov/ntsb/GenPDF.asp?id=DCA86AA004B&rpt=fi

http://disposeofsturgell.blogspot.com/

The Falcon’s “Probable Cause” “Current Synopsis” from the NTSB’s database, reads almost identically to the Piper’s. The “lay translation” above for the Piper can be applied here to the Falcon report as well:

http://www.ntsb.gov/ntsb/brief.asp?ev_id=20001214X38212&key=1%20
NTSB Identification: DCA86AA004A.
The docket is stored on NTSB microfiche number 28588.
14 CFR Part 91F: Special Flt Ops.
Accident occurred Sunday, November 10, 1985 in FAIRVIEW, NJ
Aircraft: DASSAULT FALCON 50, registration: N784B
Injuries: 6 Fatal, 2 Serious.
DASSAULT FALCON 50 (D50), N784B, WAS ON VOR/DME-A APCH AT DUSK TO CIRCLE/LND AT TETERBORO (TEB), AS PIPER PA-28, N1977H,WAS TRANSITING ARPT TRAFFIC AREA (ATA) FM WEST TO EAST AT 1500’ IN VFR (NO FLT PLN). PA-28 PLT WAS CLRD THRU ATA BY TEB TWR (STAYING BLO TCA FLOOR AT 1800’). LCL CTLR (LC) WAS ALSO HANDLING SVRL OTR ACFT & RDO FREQ WAS CONGESTED. ARTS COM[]PUTER DIDN’T ACQUIRE D50’S EARLY DEP FM MORRISTOWN. TRACON HAD COORDINATED D50 ARRIVAL WITH TEB TWR, BUT TWR COORDINATOR& CLNC DELIVERY CTLR FAILED TO SPECIFICALLY NOTIFY THE LC. LC WAS SURPRISED WHEN D50 CREW (ARRIVING AT A SOMEWHAT FAST SPEED) CONTACTED HIM. LC GAVE TRAFFIC INFO TO D50 CREW, BUT PROVIDED MISLEADING ADVISORY CONCERNING THE PA-28’S DRCTN OFFLT. SUBSEQUENTLY, D50 & PA-28 CONVERGED & COLLIDED AT EDGE OF ATA, 4.5 MI ESE OF ARPT. D50 CRASHED IN APARTMENT BLDG, KILLING 1 & INJURING 2. EVIDENCE OF BREAKDOWN IN ATC COORDINATION; ATC MANAGEMENT AT TEB FAILED TO RECOGNIZE & CORRECT OPERATIONAL PROBLEMS. BRITE RADAR AT TEB TWR DID NOT DISPLAY ALPHA-NUMERIC DATA OR RANGE MARKS.

The National Transportation Safety Board determines the probable cause(s) of this accident as follows:
CREW/GROUP COORDINATION..INADEQUATE..ATC PERSONNEL(LCL/GND/CLNC)
TRAFFIC ADVISORY..IMPROPER..ATC PERSONNEL(LCL/GND/CLNC)

Contributing Factors
SUPERVISION..INADEQUATE..ATC PERSONNEL(SUPERVISOR)
PROCEDURES/DIRECTIVES..NOT FOLLOWED..ATC PERSONNEL(LCL/GND/CLNC)
LIGHT CONDITION..DUSK”
http://www.ntsb.gov/ntsb/brief.asp?ev_id=20001214X38212&key=1

Then you can read the NTSB’s “Factual” Report on the Falcon, which I have also backed up on one of Quiet Rockland’s own websites in the event that NTSB tries to take theirs down:

http://www.ntsb.gov/ntsb/GenPDF.asp?id=DCA86AA004A&rpt=fa

http://browbeatsturgell.blogspot.com/

Then, the NTSB’s “Probable Cause” “Brief of Accident” on the Falcon, which I have also backed up on one of Quiet Rockland’s own websites in the event that NTSB tries to take theirs down:

http://www.ntsb.gov/ntsb/GenPDF.asp?id=DCA86AA004A&rpt=fi

http://lambastesturgell.blogspot.com/

“The collision took place between an altitude of 1,500 to 1,600 feet over the city of Fairview, New Jersey, about 4.5 miles east-southeast of the TEB airport at the edge of the airport traffic area and 400 to 500 feet above the floor of the New York terminal control area (TCA) for LaGuardia (coordinates 44° 48’58”N latitude, 73° 59’54”W longitude)… Witnesses who saw both airplanes before the collision stated that both had lights on and were in about level flight. They said that the DA50 had made a left turn and was flying in a northerly direction and the PA28 was flying east at the time of the collision”. (P.13, AAR).

VI. ATC RESPONSIBILITIES IN 1985

What were the codified responsibilities of the Air Traffic Controllers and relevant facilities at the time, in 1985?

From Pages 24-28, AAR:

“A “Letter of Agreement” (LOA) dated April 27, 1984, between the New York TRACON and the TEB control tower entitled “Interfacility Coordination Procedures and Responsibilities” required the TRACON to accomplish the following regarding aircraft under their control arriving at TEB:

1. Forward the following information to TEB 10 minutes before an aircraft’s arrival estimate or as soon as possible-identification; aircraft type; type of approach if other than the primary approach in use; and runway if other than the primary runway in use.

2. Coordinate all IFR arrivals which will enter the airport traffic area from a direction other than from over the final approach fix in use.

3. Advise the tower when an arrival is 10 miles from the airport.

4. Transfer communications to the tower. prior to the final approach fix or entering the airport traffic area.

The TEB control tower is required to notify the New York TRACON of the following:

1. Visibility and wind changes not shown in current weather observations.

2. Airport conditions which may affect air traffic.

3. ATC instructions which will affect traffic under the TRACON’s control.

Flight progress strips are used to post current data on air traffic movements and to record clearances required for control and for other ATC uses. These strips may either be handwritten or machine generated by a Flight Data Entry Printout equipment (FDEP). Handwritten strips are required to conform to the same format as machine generated strips. Each air traffic control facility can establish some data transmission parameters tailored to the local needs and capabilities of the facility, provided any deviations from national standards are written in facility directives.

The normal processing procedure for a flight into TEB includes the following steps:

1. Pilot files an IFR flight plan at least 30 minutes before estimated departure time (ETD).

2. The flight plan is forwarded to the New York air route traffic control center (ARTCC).

3. New York ARTCC transmits the departure flight plan in two ways:

a. An FDEP strip is transmitted to the New York TRACON and the tower serving the departure airport if equipped with FDEP, 30 minutes before ETD.

b. An ARTS flight plan is transmitted to the New York TRACON ARTS-IIIA computer 15 minutes… before ETD (footnote: Normal parameter - frequently reduced to 10 minutes by ARTCC during periods of heavy activity).

4. Receipt of an FDEP departure strip constitutes ARTCC issuance of an IFR clearance as specified by the operational LOA. This means that a terminal facility (TRACON or tower) can issue an IFR departure clearance in accordance with the LOA. Departure clearances include discrete beacon code assignments.

5. When the aircraft departs and is squawking the appropriate beacon code, automatic radar target acquisition will normally occur on the ARTS radar display. This means that a flight data block automatically associates itself with the radar/beacon target on the radarscope.

6. A departure message is required by New York ARTCC to initiate subsequent computer processing for an active flight plan. This includes en route and arrival FDEP strips and ARTS flight plans distributed according to route of flight, altitude, and airspace boundary criteria (ARTCC data base).

7. A departure message can be initiated in one of three forms:

a. ARTS generates an automatic departure message upon auto acquisition, provided ARTS has the flight plan from ARTCC; the aircraft transponder replies with the proper beacon code; and the ARTS properly tracks the aircraft.

b. Transmitted to ARTCC by a controller making an entry with the FDEP.

c. Activation via telephone to ARTCC.

The ATC sequence of events for the DA50 flight into TEB was as follows:

1. At 1639 the flightcrew filed an IFR flight plan with the Poughkeepsie FSS for a flight at 1730 from Morristown to TEB.

2. At 1654 the DA50 flightcrew requested its IFR clearance. Since Morristown was not equipped with an FDEP machine, it was not automatically notified of the flightplan. The Morristown Clearance Delivery Controller requested the information from the TRACON via landline since the proposed departure time was more than 30 minutes away. However, the TRACON did not yet have the information from the ARTCC.

3. At 1706 the air traffic assistant at the TRACON contacted Morristown and provided the clearance from the flight strip after it was printed by the FDEP machine. Three minutes later the assistant gave the strip to the radar Departure Controller.

4. At 1710 the DA50 was cleared for takeoff. Ten seconds later the Departure Controller told the coordinator at TEB by landline that the DA50 “is inbound just rolling at Morristown this time….’ The Coordinator acknowledged the report by giving his operating initials, ‘lima golf.”

5. At 1712:02 the Departure Controller [Steve Kelley] established contact with the DA50. Automatic a[c]quisition of the beacon target by the computer did not occur because the airplane departed earlier than planned and before the receipt of an ARTS flightplan from the ARTCC computer. He [Steve Kelley] had to initiate a manual ARTS track of the airplane ABOUT ONE MINUTE LATER. [Emphasis added]. The lack of automatic a[c]quisition negated all subsequent automatic ARTS functions and interfacility communication including transmission of an arrival strip at TEB.

[Query here: WHY “one minute later”, and why doesn’t this specific AAR passage explain that?].

At sometime after notification from the TRACON that the DA50 was departing Morristown, the TEB Tower Coordinator asked the Clearance Delivery Controller to assume the responsibility for his position and left the tower cab about 1710 for the restroom. The Tower Coordinator did not “sign off” of his position in a log as required, nor did he provide a relief briefing in accordance with the prescribed checklist. He told the Clearance Delivery Controller that there was no inbound traffic that the Local Controller did not know about.

The Clearance Delivery Controller agreed to cover the position, but she did not sign the log to assume the position. At 1718:08, the Departure Controller told TEB, “…Falcon seven eight four bravo is a mile from CLIFO”. [Note: not found in NTSB Transcript below]. The Clearance Delivery Controller took the “progress report’ and told the Local Controller of the report. She stated that she reported out loud to the Local Controller that the DA50 was at CLIFO. However, the Local Controller, who was wearing a headset did not hear the Clearance Delivery Controller and was not aware the DA50 was inbound until 1719:54 when he asked who reported over CLIFO.

After the Clearance Delivery Controller’s report to the Local Controller, she stated she observed the Ground Controller get up, move over to the Local Controller, and reposition a flight strip which she assumed was for the DA50, implying that her coordination report had been accomplished. However, the Ground Controller did not recall getting up and moving a strip at that time. He did not write a strip until after the DA50 reported overhead. None of the controllers in the control tower reported knowing if a machine generated flight strip existed. In this case the coordinator was required to write a strip for use by the Local Controller at the appropriate time.

Upon learning of the DA50’s position, the Local Controller described the PA28’s position as 1 o’clock and westbound based on looking out the window of the tower cab and by observing the BRITE display. The PA28 was actually eastbound as it had been all during its transit through the airport traffic area. On another occasion the Local Controller informed the PA28 pilot that he was being overtaken by the DA50. However, either the transmission or the acknowledgement was blocked by another aircraft or the PA28 pilot did not acknowledge the transmissions as indicated by the record of ATC communications. The DA50 was made aware again of the PA28’s position when the Local Controller transmitted, “You’re closing on him, he’s, [uh], light aircraft at, [uh], your one to twelve o’clock westbound.” The DA50 captain then reported that they had the traffic in sight. The Local Controller instructed the flightcrew to “...maintain visual,” but they did not acknowledge the instruction. At 1721:50, the Local Controller asked N784B if it still had the traffic in sight, but there was no response from the aircraft.

The Local Controller testified that he would have cleared the PA28 to transit the area despite knowing about the DA50 inbound flight. [THE LOCAL CONTROLLER] STATED THAT ALL HE NEEDED WAS AN INBOUND CALL AT CLIFO IN ORDER TO HAVE PROVIDED ADEQUATE ADVISORIES FOR TRAFFIC SEQUENCING. HE ADMITTED THAT HE WAS SURPRISED TO LEARN ABOUT THE LOCATION OF THE DA50 AND THAT HE WAS BUSY WITH OTHER AIRPLANES AT THE TIME. [Emphasis supplied]. He characterized the traffic volume as moderate and building. He stated that he did not know which airplane the flightcrew was referring to when they called the traffic in sight at their initial call overhead the airport (1719:56). He stated it could have been the Twin Cessna, N1959T or the PA28.

The Supervisor testified that under conditions of increasing air traffic he can decide to establish a second control frequency. The purpose of establishing two local control positions is to reduce frequency congestion and controller workload. This would take the form of a controller staffing an outer control position (an area 2 to 5 miles from the airport) and an inner control position which is normally staffed by the Local Controller. The outer control position would operate as a feeder position for arrivals into the airport and the arrivals would be assigned to the local (inner position) controller for sequencing into the traffic pattern. The implementation of this procedure on the evening of the accident would have required using the coordinator as the outer Local Controller, with the other controllers shifting positions and the supervisor taking over the flight data/clearance delivery position. The Supervisor stated that it would take several minutes to implement the procedure and the change would be broadcast on the ATIS. Essentially he reported the procedure was not implemented because he was not aware of excessive workload on the Local Controller. In addition, he reported that “...everything seemed to be going normally and smooth... Other than the normal Sunday night situation... it was after sundown, so our late evening Sunday arrivals were coming back.”

The Manager of the Terminal Procedures Branch of the FAA in Washington, D.C., testified that a decision to permit an aircraft to transit an airport traffic area is at the discretion of the Local Controller. It is a subjective decision based on the traffic conditions that exist at any particular time. EXCEPT FOR THE FACT THAT THE FLIGHT PROGRESS STRIP WAS NOT GIVEN TO THE LOCAL CONTROLLER UNTIL AFTER THE DA50 WAS OVERHEAD, THE MANAGER FOUND NOTHING WRONG WITH THE WAY THE COORDINATION ATTEMPT BETWEEN THE FACILITIES WAS ACCOMPLISHED. [Emphasis supplied]. In his opinion, the absence of a strip should not have created difficulty for the controller because, “VFR tower controllers are not involved in the manipulation of strips ...notepads is [sic] basically what they use ... those are essentially used only as memory joggers. They are not how you sequence your traffic, but [are used] for a planning tool ... it is a valuable assistance to the controller to know something is going to occur.”

FAA ATC Handbook 7110.65D, Chapter 3, Paragraph 3-11, Airport Traffic Area Restrictions, states, “If traffic conditions-permit, approve a pilot’s request to cross an airport traffic area...”. When the manager was asked if he thought it would have helped the Local Controller to know about the DA50’s inbound flight before he approved the PA28’s overflight, the manager said, “In my opinion and based on my experience, I would say no”. Paragraph 3-90 of the handbook also provides the correct phraseology to be used to establish the sequence for landing aircraft. The order of the phraseology to use is: landing sequence number followed by a description and location of the traffic.

The TEB control tower was not equipped with interphone capability for controllers at the time of the accident. Since it was a small tower cab and controllers worked close together, they routinely coordinated traffic verbally with one another. Also, it was customary for them to log and manage VFR traffic using notepads. Flight strips were used primarily for IFR traffic.

Further investigation disclosed that the TEB controllers differed on the frequency, but they had experienced several instances where IFR inbound traffic was not previously coordinated in the tower, and several instances where aircraft would not make their initial call at CLIFO until over the airport. In addition, there was confusion over the terms and procedures regarding a compulsory reporting point. The supervisor was unclear about terminology and references in support of reporting requirements. Also, it was not routine for the controllers to sign on and off their positions during rotation or relief which was contrary to FAA Order 7210.42 of April 25, 1982. Moreover, there were no regular staff meetings to resolve these problems”.

And, as for the NTSB’s assessment of what further happened, Page 51, AAR:

“A breakdown in communications occurred within the TEB control tower. This breakdown underscores the fact that, in spite of the redundancies designed into the system of ATC, deviations from standard operating procedures and practices can result in accidents. Several factors led to the breakdown in communications. In view of the testimony from FAA personnel, it was evident that they did not place much emphasis on the importance of the flight progress strip in this particular accident involving a VFR tower. They essentially admitted that it had its importance, but in this accident they believed that the progress report from the TRACON was more important. Since the operation of a VFR control tower does not handle flight strips as a primary duty in the FAA’s view, the importance of the strip was diminished. Furthermore, controllers probably became accustomed to handling traffic from the TRACON without first receiving a flight strip. This situation was common and would have preconditioned the controllers to operate accordingly without concern. The fact that the FAA has taken action to emphasize the use of flight strips at TEB is indicative of a preexisting problem that was not resolved by local FAA management before this accident.”

* * * * * * * * * * * * * *

VII. THE COMPETING THEORIES OF STEVE KELLEY’S RESPONSIBILITY

Now, you, the critical and careful reader, may well want to play Devil’s Advocate. After reading the above text and documents, and the below Transcript in full, you might say, “Wait a minute. Page 53 of the NTSB Aircraft Accident Report said “The TRACON Departure Controller [‘]coordinated properly[‘] the flight of the DA50 IFR traffic with the TEB control tower”.

As opined by one Year 2008 ATC:

“The key here would be when, and at what time, was the ‘coordination’ made, and where was the DA50 at the time of such ‘coordination’. Proving proper coordination would be difficult without accompanying tapes and video. [Note: representatives of NTSB have assured me as recently as last week that the audiotapes are not archived and likely no longer exist. How convenient.]

And, the Devil’s Advocate reader might further say, “Each plane’s NTSB “Probable Cause”/“Current Synopsis” reads: ‘TRACON had coordinated D50 arrival with TEB TWR’.”

So, you ask, why does this 1985 Mid-Air Fairview Aviation Disaster bear upon Steve Kelley in any way?

At minimum, 5 possible reasons:

A. Review By Other ATCs. Other Year 2008 Air Traffic Controllers who has examined the accident reports, the transcripts of audio recordings (an edited and clarified version re-printed in full below), and other related documents on Fairview, have opined that Steve Kelley was at least in part responsible. As an example, one such Year 2008 Air Traffic Controller evaluating the within and below reports and Transcript, opined as follows:

“The Local Controller was surprised by the arrival of the Falcon. Under current expectations and procedures, if Steve Kelley in the TRACON had changed and updated the PDT (“Proposed Departure Time”) in the computer, that action would have automatically printed an IFR (“Instrument Flight Rules”) “strip” in the Tower.”

Normally a computer-generated strip would be generated 15 minutes prior to arrival. (See, e.g., Deposition of ATC Lenard Greenberg, February 24, 1986, Page 59):

“Q: ‘Is the receipt of such a strip of any importance with respect to an inbound IFR?’

Greenberg: ‘It helps.’

Q: ‘In what way?’

Greenberg: ‘It lets you become aware that there’s other traffic coming in that you didn’t know about [it] before…’” (Deposition of ATC Lenard Greenberg, February 24, 1986, Page 190; see also Deposition of Mr. Kenneth Millan, February 24, 1985, Pages 343, 344: “I did not have the information that I needed… I never got a final approach fix call inbound from the pilot… I wasn’t aware of his type… I did not have the information… I did not have a flight[-]generated strip”).

ATC Millan further testified:

“Q: ‘So there was an airplane that was coming into your area that you had no idea was coming. You got back to him later and you found out that he was an IFR and you had no strip on him’.

Millan: ‘Right.’” (Deposition of Mr. Kenneth Millan, February 24, 1985, Page 346; see also Deposition of FAA’s Supervisory ATC Specialist, Manager of the Terminal Procedures Branch, Richard Barker, February 26, 1986, Pages 117, 138, acknowledging the non-delivery of the strip as a “difficulty”, and acknowledging the value of “checks and balances” and “redundancy” – in Barker’s words, “if one slips through the crack[s], maybe the next one won’t…”).

From Nabisco Brands, Inc.’s Proposed Findings, Probable Cause And Recommendations, Page 17[20]; May 30, 1986):

“Flight data strips are critical when, as in this case, there is no other advance notice to the local controller of jet traffic inbound to the same airspace where light aircraft are also cleared. As acknowledged, albeit grudgingly, by the local controller at the public hearing (Millan), flight data strips provide information he needed in this case for planning and sequencing of traffic. (Millan hearing testimony 343-15 to 344-4). This is because approval of overflights such as that of 77H depends primarily on the local controller’s knowledge and assessment of the traffic load”.

Then, Nabsico continues:

“Specifically, the accident was caused by: -- the failure of the FDEP system to print out automatically a flight data strip on 84B in the Teterboro Tower… (Nabisco Brands, Inc.’s Proposed Findings, Probable Cause And Recommendations, Page 29[32], listing the absence of a strip as the first one of several causes).

From a 1985 witness statement, a motorist and presumably a pilot who happened to be driving near Teterboro and scanning aviation radio at the time, we get a sense of what the tone of Teterboro’s replies actually sounded like, once the effect of the non-strip started to be made manifest:

“The [T]ower, sounding surprised, asked the Falcon to confirm that he was overhead. The Falcon confirmed it… if the [T]ower knew he was inbound before the Cherokee called in, the Cherokee most likely would have been denied clearance through the area”. (Handwritten Witness Statement Of “W. Golden” of West Orange, NJ, submitted to the NTSB, Dec. 22, 1985).

And another Year 2008 Controller opinion after reviewing the Transcript:

“The “Proposed Departure Time” [PDT] is “amendable” by ATCs and is the time a pilot generally expects to leave the airport. It is initially filed in the flight plan by the pilot. Amending a proposed time will initiate a printed strip if the new proposed time is within 30 minutes prior to the current time”.

“When a delay program is in effect for, say, JFK, then the TMU (Traffic Management Unit) can delay a pilot’s arrival at a busy airport by delaying the proposed departure time of, say, a San Fran departure, by adding 30, 60 or even 90 minutes... Then what Kelley did would have really been the same and amend the proposed departure time, which is not going to take more then a minute or two for the flight to become active. Kelley did not need to input a new flight plan, just amend an already existing flight plan to pop out of the system sooner. A simple data entry”.

This account seems to comport with Steve Kelley’s own acknowledgment. After “reviewing the tapes”, Kelley post-crash acknowledged that “because of the proposed departure time, [November 84 Bravo] was not in [his] tabular listing for that reason”, further explaining why the flight was not ‘auto-acquired”. The aircraft would have needed to have been listed in the tab list in order to “auto-acquire”. (Feb. 24, 1986 Kelley Deposition, Page 98).

The core question the Year 2008 ATC commentators assess above, is what if anything Steve Kelley would have or could have done in November, 1985 with the technology and resources available to him at the time, to change the Departure Time in the relevant computer, so as to them automatically print a Flight Strip in the Tower.

An additional Year 2008 ATC opinion continues:

“The Air Traffic Controller ‘Bible’ is known as the ‘7110.65’. It is the book of rules that ATCs must follow. It is amended on average at least several times a year. Tower rules are different from TRACON rules, and TRACON is different from Center separation. In my opinion, If Kelley simply amended the PDT to show the flight [as] ‘active’, the process would have taken care of itself, and no mid-air collision would have likely occurred.

“These days, when a pilot files an IFR clearance, they must put in a Departure Time in the flight plan, so that the Controller knows approximately when the flight wants to be airborne. Since the Falcon departed [note: somewhere between 19 and 30+ minutes prior] to the Departure Time [PDT], then the flight apparently never became “active” in the system. IFR strips print automatically, in the sector or tower where the flight should be. [Note: 20, 30, or 35 minutes prior]. When Steve Kelley manually acquired the target with a data block, a progress strip was NOT sent to the Tower Controller. In theory, if the Departure Time would have been updated, then the Clearance Delivery Controller could have placed the strip in front of the Local Controller without any verbiage. The reason why this is important, is because sometimes a busy controller does not have the time to acknowledge verbally, but while listening to a “read-back” can check and make strips in front of himself or herself.

“The Tower Controller was then surprised by the arrival of the Falcon, for TWO reasons:

(A) Steve Kelley coordinated with the Tower that the aircraft was inbound, but the Controller that made that coordination never passed it on to the Tower Local Controller; and

(B) In my opinion, if Steve Kelley simply ‘turned around to Data’, and told them to amend the Departure Time on the Falcon to show the flight as ‘active’, then the Flight Strip should have automatically printed to the Tower Local Controller with an arrival time so that the Local Controller could have decided to limit known traffic to accommodate the IFR. THE LOCAL CONTROLLER MAY NOT HAVE APPROVED THE TRANSITION OF THE PIPER, SINCE THE PATTERN WOULD BE FULL. It is hard for Tower to sequence two aircraft with very different performance characteristics, let alone be surprised by a faster plane behind a slower plane.

“That Falcon was moving at a rate of about 3 miles per MINUTE. Because the Falcon never timely popped up on the ‘strip’ apparently, as I deduce it from the Transcript, Steve Kelley in the TRACON essentially dropped the Falcon on the Local Controllers when the Falcon was about one (1) mile away from the airspace for which they were responsible. That’s the equivalent of Kelley giving them 20 seconds of heads-up notice, on a crowded Sunday evening with crowded radio frequencies. That would be like someone phoning you in your living room tonight, and telling you there was some maniac on a bicycle headed straight for your front door, and that you had better open both your front door and your back door in a few seconds or else he was going to crash and kill himself by slamming right into your house.

“Air traffic controllers refer to the theme of ‘break the chain’. Wherever there is a loss of separation between planes, it comes down to three (3) sequences that occurred. If any one of them was changed, it would have stopped the collision. In this case:

(a) Steve Kelley not updating the Departure Time;

(b) The Clearance Delivery Controller not passing on the information, because the Local Controller was apparently too busy;

(c) The traffic call apparently not being clearly acknowledged.”

In Steve Kelley’s own 1985 words, there had not been any “auto acquisition” on the Falcon, because the Falcon had departed Morristown earlier than scheduled:

“Q: ‘Could you describe for the record, please, “auto acquisition”?’

Steve Kelley: ‘Well, a departure will come up on a discrete code and the computer will identify that code, and in the computer store[d] there is a call sign associated with that computer code, and it will automatically attach to that code on the radar display in the ARTS function”… “Typically there’s auto acquisition’”.

Q: ‘In this case there was no auto acquisition, then?’

Steve Kelley: ‘That’s correct.’” (Nov. 15, 1985 Kelley Deposition, P. 10).

Yet Steve Kelley continued to believe, as late as 3 months after the 1985 crash, that his own actions were adequate. Kelley likely still maintains that belief, although it is doubtful that the victims’ families do:

“Kelley: …I passed the inbound call to Teterboro Tower which was the information they needed on arrival of the aircraft, and there being no other facilities involved I felt that that was sufficient information needed”. (Feb. 24, 1986 Kelley Deposition, Page 99).

From another experienced Year 2008 ATC, critical of Kelley:

“After reviewing the Transcript, Steve Kelley should have initiated a ‘Departure Message’. I would have done so. The acronym ‘R.F.’ in this context signifies forcing flight information into a computer. I would have RF’d this plane’s flight – it would have forced the flight information into the computer, and as I understand it that measure was available back in 1985 just as it is today. (1) I would have put in a Departure Message, or ‘DM’, constituting the same thing as initiating a flight plan; and (2) putting in the DM would have amounted to the same thing as the “ARTS” computer system picking-up the plane’s transponder and automatically starting and generating a flight plan. Either one generates a strip.

“The process would have been as easy as saying ‘DM 192’ to the data guy, or pressing “Enter – 192” on a key-pad. It would have been that easy. True, once verbally coordinated, that verbal contact would do away with the need for a DM”.

Consistent with the criticism of the Year 2008 ATC commentators, Steve Kelley himself admits in 1986 what else he could have done:

“Well there are other ways to get the track to auto acquire and [uh], there are manual ways to go around the auto acquisition process. I can call over to data or myself enter a forced function to force that call sign into the tabular list, and had he been going to some other location or into the center’s section I would have done so”. (Feb. 24, 1986 Kelley Deposition, Page 100).

So Steve Kelley could have done at least two other things: (1) “call over to data”, and (2) himself enter a forced function – ironically, given Kelley’s theatrical background, an “ARTS force”.

“Q: ‘Should you have then initiated an “ARTS force or had flight data do so, so as to [e]nsure that the strip was transmitted?’”

Steve Kelley [apparently stammering]: ‘There was, I didn’t feel there was a requirement for that’”. (Feb. 24, 1986 Kelley Deposition, Page 100).

And there is another, third thing Steve Kelley admits he could have done which in all likelihood would have avoided the end-result of the mid-air crash – effectively, call a landing “do-over”:

“Kelley: …the only other choice at that point is to resequence the aircraft for the approach because it was not a good turn on but that was not the option I selected”. (Feb. 24, 1986 Kelley Deposition, Page 136).

Does the fact that Steve Kelley had not one, not two, but three separate tools at his disposal to avoid the Fairview crash, mean that he is responsible for the Fairview crash?

How unusual was the lack of a strip? From the Teterboro Area Supervisor Joseph Paparazzo, on duty the night of the crash, testifying in 1986:

“Q: ‘[H]ow often do you have IFR inbound arrivals without having flight progress strips out of the computer?’

Paparazzo: ‘A breaking down, do you want it in percentages? Would that help?’

Q: ‘Well, I’m not sure what a percentage would mean. Suppose you tell me?’

Paparazzo: ‘Okay. Thinking about it yesterday, sitting here listening, I would say one half of one percent on the inbounds are not progress strips… [w]e average 400-500 instrument operations a day, both in and out and figure about half are arrivals, half are departures…’” (Deposition of Joseph Paparazzo, February 25, 1986, Pages 80, 81).

Another Year 2008 ATC paints a more Kelley-exculpatory picture:

“I spoke with a friend of mine who was working air traffic before I was born. I ran the situation by him (sanitized with no names, dates, or call signs). He said that back in 1981 (when the equipment was similar to 1985), he would have done the same thing – ‘tagged the aircraft up’ and ‘made the call’. He said that what it would take to have someone fix the computer issue, or do it himself, AND wait for the data to go to the center computer and back to the TRACON AND cross your fingers and hope the tag auto acquires - there would be just too much to leave to chance with the state of the equipment back then. In his view, it would actually be less safe to let the untagged aircraft fly through the airspace, waiting for the computer to ‘catch up’. Given the circumstances, he would have done the same thing, and I likely would too”.

But another apparently thereto-contrary Year 2008 ATC opinion:

“If I understand the fact pattern then there was no need to terminate the data tag since the Falcon had an IFR flight plan already filed. Just amend the Departure Time and in minutes the tag would pop up in the tab list. The plane was apparently still on the ground when Kelly called an inbound to Tower.”

And, another Kelley-critical Year 2008 ATC opinion:
“If the information on the computer was correct, Kelly switched the Falcon only 5 to 6 miles out from the Tower, when the 7110.65 required [a minimum of] 10 miles. If Kelley acted within the 10 mile parameter, then that would have added an extra minute for the Tower Controller to respond and analyze the situation - in essence taking the surprise out of the situation.”

Could this “extra minute” correspond to the same “about one minute later period” quoted above from Pages 24-28 of the AAR?

Another year 2008 ATC opinion critical of what Steve Kelley did and did not do:

“Regarding communications, the Falcon should have been transferred to TEB Tower prior to the final approach fix, or ‘CLIFO’. There, ‘CLIFO’ IS the final approach fix. As I understand it, this was a VOR Alpha approach. The pilot reported at CLIFO. But the communications transfer to the Tower should have been made PRIOR to the approach fix.

“Additionally, Steve Kelley’s phraseology in the Transcript, in my opinion, is absolutely horrendous. If I counted them out individually, I would expect to identify at least 40 examples of bad phraseology from Steve Kelley.

“A pilot is supposed to be ‘established’ on the final approach course, 3 miles from the Final Approach Fix (FAF). The “(Final) Approach Gate”, as it is called, is one mile before the Final Approach Fix. The principle here, is that you must give the pilot a decent approach with lead time. It’s a 7110.65 issue.

“You can, with pilot compliance, be within the 3-mile zone from the fix, but you the ATC NEVER can give the pilot the approach within the 1-mile zone – you NEVER give the pilot the approach within the Final Approach Gate.

“Steve Kelley got the pilot compliance, as the Transcript indicates. So Kelley in theory was allowed to give the pilot the fix within the 3-mile zone. But as I read it, according to the Transcript, Steve Kelley did not give the pilot the fix by the time the Gate was hit – by the time the Final Approach Gate was hit. Within a 1-mile zone or less, that’s about 20 seconds or less of flying time. That’s bad procedure.”

“Additionally, the transfer of communications must be established prior to the final approach fix. It was not, as we can tell from where the pilot reported-in, by reading the Transcript. The pilot reported-in AT the Final Approach Fix. At one point a controller even says in the Transcript ‘Who was that calling-in within CLIFO?’, or words to that effect. The matter was handled very sloppily all the way around. It was a series of small things that added up to a big calamity.”

B. Steve Kelley Pinioned On His Own Stupid Words. Steve Kelley’s own on-air self-deprecating admissions of fault in 1985, indicate his mental acknowledgment of his own responsibility. Take a careful look at the below Transcript of the radio calls for the 1985 Mid-Air Fairview Aviation Disaster. In radio conditions which Kelley already knows to be rugged and difficult, Kelley admits on-air that a pilots turn over which he has ostensible jurisdiction, in near-immediate retrospect, “was obviously not the best turn”. [Transcript, 17:17:41].

One year 2008 ATC asked to interpret that particular Kelley remark, opined as follows:

“Without seeing the video or hearing the audio, it appears from the Transcript that Kelley gave the D50 pilot a poor intercept angle that either: (A) never would intercept the approach; or (B) was too shallow to intercept before [the] approach fix where the pilot starts his descent.”

Then, to continue with the Transcript, when the pilot responds on the radio, in effect, “We’ll figure this out [up here]”, Steve Kelley sheepishly replies to the pilot, on air, for all the world to hear:

“Guess I need all the help I can get”. [Transcript, 17:17:50].

“Guess I need all the help I can get”??? –

- From a supposedly professional air traffic controller in the NY TRACON, with jurisdiction over the lives and fates of hundreds if not thousands of people, including the pilots in the air who rightfully expect Steve Kelley to get it right THE FIRST TIME?

When Steve Kelley was asked in his deposition 5 days after the fatal mid-air crash, what he had meant by “Guess I need all the help I can get”, Kelley replied that he was “thanking the pilot for helping me…”, and then points out the pilot’s “inability’ to make the first approach. (Nov. 15, 1985 Deposition, Pages 34, 35); “thanking him for helping me get himself back on the approach course”, (Feb. 24, 1986 Kelley Deposition, Page 115).

Kelley was working Newark Departure Radar at the TRACON.

Kelley should have been the one “helping” the pilot, not the other way around.

A Year 2008 ATC asked for his opinion, had the following explanation for and interpretation of this Kelley remark:

“Kelley is admitting his mistake to the pilot and the pilot basically says ‘do not worry, we will figure this out’. Without video, this next part is hard to say with certainty, but it appears from the transcript that the ‘turn on’ must have been very sloppy.

“There are 360 degrees in a circle. Kelley’s Transcript references (at 17:16:55) a “three[-]zero[-]five radial”.

“Kelley endeavors to put the pilot on this radial, “The Teterboro Three Zero Five Radial”, to get him to his airport landing:

17:16:55
STEVE KELLEY: FALCON SEVEN EIGHT FOUR BRAVO IS THREE MILES WEST OF CLIFO TURN RIGHT HEADING ZERO NINER ZERO TWO THOUSAND UNTIL ON THE TETERBORO THREE ZERO FIVE RADIAL CLEARED VOR DME ALPHA APPROACH

The reciprocal of 305°, is 125° - since 305, minus 180, equals 125. So the radial that the pilot is supposed to be intercepting is a “305”, but the “heading” which the pilot would be flying when he is on it, is 125°. So, when Kelley gave the pilot a 90° heading, he gave him a 35° angle of intercept, since 125 minus 90 equals 35. Well, 35° is higher than the 30° currently prescribed or in some cases even 20° angle currently prescribed, and in all likelihood then prescribed, by 7110.65.

Kelley admits his angle was excessive, in his 2nd Deposition:

“Q: ‘Were there any problems with the angle and the intersect[intercept]?’

Steve Kelley: ‘In this particular instance?’

Q: Yes.

Steve Kelley; ‘Um, actually I guess it’s a little more than prescribed…’” (Feb. 24, 1986 Kelley Deposition, Page 127).

More opinion from the above-quoted Year 2008 ATC:

“Also, Kelly progresses the Falcon one mile from the approach fix ‘CLIFO’. No wonder the local controller was surprised by the arrival of the Falcon if that is the only progress. Since Kelley initiated a tract[k] on the Falcon and the Tower never had a strip, then Kelley should have been mandated to call an initial inbound to Teterboro Tower and a progress. At the time Kelley switches the Falcon to Tower the pilot is traveling at 3 miles a minute”.

In his first deposition taken 5 days after the fatal mid-air crash, Steve Kelley proverbially pled the equivalent of ignorance as to why the pilot could not or did not intercept the final approach course:

“In my [‘]estimation[‘] the turn that I issued for the final approach course, considering all the factors involved, was sufficient. For some reason on the initial heading, the aircraft did not intercept the final approach course”. (Nov. 15, 1985 Kelley Deposition, P.16).

“Estimation?” “Estimations” with human lives in the balance can get people killed.

“[I]n my mind I had given him a sufficient turn to the final”. (Feb. 24, 1986 Kelley Deposition, Page 115).

Elsewhere Kelley givingly acknowledges that the turn to the final approach course was “a tight turn and a close[-]in approach” (Feb. 24, 1986 Kelley Deposition, Page 112), and a “close turn” (Page 115); but then Kelley appears to at least subliminally turn and seek to place blame on the pilot for flying too fast:

“The turn had the speed be[en] complied with would have been adequate for that final approach course”… “…if the speed had been reduced I believe the approach would have been a tight turn. It would have not been acceptable turn on in IFR weather but in VFR conditions yes in my opinion it would have been a fair turn on”. (Feb. 24, 1986 Kelley Deposition, Page 114; see also Page 115). When asked if he made note of the speed of the aircraft, Kelley replied, “I knew that he had not slowed, primarily because of the turn”. (Feb. 24, 1986 Kelley Deposition, Page 127). See also “…it was apparent that the speed had not been complied with when I made that turn to final approach”. (Feb. 24, 1986 Kelley Deposition, Page 136).

But in virtually the same series of breaths, Kelley immediately backs down from his blame-the-victim insinuation:

“Q: ‘Okay, you said [‘]had the speed been complied with[‘], are you inferring that the air[]craft was not operating at the assigned speed?’

Steve Kelley: ‘Well again that’s an assumption on my part, but [uh], from my past experience dealing with jet air[]craft and turning final into Teterboro had the air[]craft reduced it[s] speed to 180 knots the turn to the final would not have been a problem.’

Q: ‘But you don’t have any specific recall at this time of displayed ground speed?’

Steve Kelley: ‘No I do not’”. (Feb. 24, 1986 Kelley Deposition, Page 114).

Kelley also admits he “can’t speculate” and “it’s very hard for me to tell” from radar the timing of the turn, “the crew’s response to the issuance of his turn [on] to the final”. (Feb. 24, 1986 Kelley Deposition, Page 150).

Steve Kelley also seems to get downright bitchy with the questioner in his 2nd Deposition who asks him if he, Kelley, took note of the aircraft speed:

“Q: ‘At any time between the time that you notified him with respect to the speed and that you took, and you turned him over to the tower did you take note, specifically that his speed was excessive?’

Steve Kelley: ‘I observed some erratic ground speed readouts… Um, unfortunately at the time I just didn’t think it was important, okay[?].’” (Feb. 24, 1986 Kelley Deposition, Page 129).

Ooh.

Witness these edited excerpts over a 3-minute period of the Transcript (the full Transcript follows below and thereafter):

17:12:09
STEVE KELLEY: “Seven eight four bravo is radar contact two south of Morristown start a left turn now heading zero eight zero…

17:14:53
STEVE KELLEY: “Falcon seven eight four bravo turn left heading zero one zero…

17:15:00
STEVE KELLEY: “Seven eight four bravo and [ah] you can start your speed back if you would sir to [ah] one eight zero you’ll be following a Twin Cessna to Teterboro I’m gonna turn you on just outside CLIFO…

17:15:40
STEVE KELLEY: “Falcon seven eight four bravo traffic twelve o’clock four miles westbound [ah] known VFR we’re working him he’s at two thousand five hundred Cessna one seventy two have additional VFR traffic eleven thirty and two miles eastbound shows one thousand eight hundred unverified…

17:16:04
STEVE KELLEY: “…and seven eight four bravo the one I’m primarily concerned about is twelve o’clock about a mile now headed eastbound he’s showing one thousand niner hundred now in the mode [‘]C[‘]…

17:16:32
FIRST OFFICER ALAN K. STITT: “They’re all over the place today…

CAPTAIN GREGORY L. MILLER: “Yeah, yeah nice day everybody’s out…

FIRST OFFICER ALAN K. STITT: “Yeah…

17:16:37
CAPTAIN GREGORY L. MILLER: “Another one down low up ahead here…

17:16:42
CAPTAIN GREGORY L. MILLER: “It’s the ones below the horizon that are [h]ard to see…

FIRST OFFICER ALAN K. STITT: “Yeah…

17:16:45
CAPTAIN GREGORY L. MILLER: “They can get you[,] to[o]…

17:16:55
STEVE KELLEY “Falcon seven eight four bravo is three miles west of CLIFO turn right heading zero niner zero two thousand until on the Teterboro three zero five radial cleared VOR DME alpha approach…

17:17:04
CAPTAIN GREGORY L. MILLER: “Zero nine zero intercept we’re cleared the VOR DME alpha seven eight four bravo…

17:17:41
STEVE KELLEY: “AND FALCON SEVEN EIGHT FOUR BRAVO THAT WAS OBVIOUSLY NOT THE BEST TURN SIR CONTINUE RIGHT ONE FOUR ZERO TO PICK IT UP…

Note: Per one Year 2008 ATC’s opinion, the above was the correct mechanical response, but still sloppy on Kelley’s part. The correctly-articulated response would have sounded more like: “Turn right heading one-four-zero to intercept the final Approach course, you’re cleared VOR DME Alpha”. The ATC opines further: “Technically, Kelley cancelled the approach. There was, therefore, a need to re-establish everything. The heading was no good. Speed may have been a factor, but 20 knots would not have made a huge amount of difference.” Interestingly enough, regarding other aspects of his radio call work, Kelley appears to blame the transcriber as opposed to himself, when challenged on his phrase “Known VFR work”. Kelley says, “ I don’t know who did that transcript…”. (Nov. 15, 1985 Kelley Deposition, Page 19; see also Feb. 24, 1986 Kelley Deposition, Page 117, in which Kelley again puts the transcription in question).

The Transcript continues:

17:17:47
CAPTAIN GREGORY L. MILLER: “We’ll figure this out eight four bravo thank you much…

17:17:50
STEVE KELLEY: “GUESS I NEED ALL THE HELP I CAN GET…”

Nabisco Brands, Inc.’s Proposed Findings, Probable Cause And Recommendations, Page 15[18], 16[19]; May 30, 1986), refused to accept any notion that the pilots could have avoided the crash, given the ATC errors and malfeasance:

“There simply was insufficient time to assess the relative paths of the two aircraft and undertake successful evasive maneuvers… At a bare minimum, the pilots need 12.5 seconds in daylight conditions to have any chance to make a successful evasive maneuver… At night, the time increment increases. [Emphasis as in original].

Air Traffic Control Performance

The flights of 77H and 84B were marred by a series of foul-ups, miscommunications, non-communications, poor judgment, faulty assumptions, failure to follow FAA procedures, and plain error on the part of the air traffic controllers, which culminated in the simultaneous but unknowing clearance of 77H (by the Teterboro [T]ower) and 84B (by the TRACON; Steve Kelley) into the identical airspace over Teterboro Airport. This set the stage for the Teterboro local controller’s incorrect, ambiguous and misleading traffic advisories which, in turn, led directly to the mid-air collision.”

Then, Nabisco urges the NTSB to exonerate the Falcon pilots:

“We further request that the [NTSB] specifically determine that this accident was not caused or contributed to by the failure of the pilots of 84B to see and avoid 77H.” (Nabisco Brands, Inc.’s Proposed Findings, Probable Cause And Recommendations, Page 31[34]; May 30, 1986),

C. Timing Is Everything, In The Game Of Hot Potato. Steve Kelley spoke with the Falcon only a bit over three (3) minutes before the FALCON crashed into the Piper. As TRACON controller, Kelley, mindful of the Sunday night traffic and the radio difficulty experienced by the pilots, ostensibly had the ability to direct the FALCON otherwise. At minimum, according to recently-rendered ATC opinions cited above, Kelley had the ability to throw up a more emphatic warning to the Local Controllers in the Teterboro area. At minimum, according to ATC opinions cited above, Kelley should have foreseen and forewarned of more of a problem coming.

D. The NTSB Covered For Kelley. The NTSB’s regular practice is to pin an aviation disaster on the last Air Traffic Controller in the chain who had contact with the plane or planes – again, like a hot potato. In one year 2008 ATCs words:

“The FAA always blames the last person to talk to the aircraft even when you could show that the receiving controller was given a bad feed”.

Therefore it is no surprise that the Aviation Accident Report slams the Teterboro Local Controllers with the responsibility for the disaster, while soft-pedaling Kelley’s responsibility. Yet all one need do is read the above, and the transcript of the few minutes prior to the death of those six (6) people in and around Fairview, New Jersey on November 10, 1985, to realize what Kelley did, and didn’t do.

E. The FAA Wouldn’t Cover This Up, Absent Guilt. FAA, and perhaps others, have recently taken great pains to conceal and suppress Steve Kelley’s involvement in the 1985 Mid-Air Fairview Aviation Disaster from public view. For one thing, my Wednesday, July 25, 2007 Freedom of Information Act (FOIA) request served on FAA and Kelley over a year ago, demanded Kelley’s full personnel file from January 1, 1980 forward, under force of federal law – YET THE DOCUMENTS FAA PRODUCED TO ME IN RESPONSE CONTAINED NARY A SHRED OF REFERENCE TO THE 1985 MID-AIR FAIRVIEW AVIATION DISASTER MUCH LESS STEVE KELLEY’S ROLE IN IT. (Text of my past FOIA requests to FAA and Kelley for this information, appears below). I have taken multiple appeals on this FOIA (see below) in an effort to combat the FAA’s willful deception, and to date the FAA’s FOIA Appeals unit has not responded to these appeals. All my rights are reserved, including rights to compel production of those documents in a federal court, and even my right to collection of attorney’s fees. What I am after, is the truth, the whole truth, and nothing but.

F. “Missing” Pages 5 And 6. Additionally, the 98-page NTSB “Aircraft Accident Report” is posted in several electronic locations on the Internet; see, e.g.:

http://www.airdisaster.com/reports/ntsb/AAR87-05.pdf

http://amelia.db.erau.edu/reports/ntsb/aar/AAR87-05.pdf

Yet at each of these above several electronic locations, Pages 5 and 6 of the Aircraft Accident Report (“AAR”) are missing. That’s right. Someone already pulled them out of the “.pdf”. IT SHOULD COME AS NO SURPRISE THAT PAGE 5 OF THAT “.pdf” IS THE TEXT WHICH IS MOST INCRIMINATING TO STEVE KELLEY. How do I know? Because I went directly to the main-repository source, the National Technical Information Service (NTIS) located in Springfield, VA, and I just recovered those two missing pages.

Nice try, FAA.

The “missing” pages, one of two of which is the specific page in the AAR which most inculpates Steve Kelley, are now posted for the entire world to see, at:
http://discardsturgell.blogspot.com/

You will see from the link above, that the page of the AAR that FAA and Kelley never ever wanted you to see, as between Pages 5 and 6, was really Page 5. Page 6 is a map of the planes right before collision. Though you have it accessible at the link above, the text of “Missing” Page 5 reads as follows, and starts with Steve Kelley in mid-sentence as follows:

“
-5-

[…that was obviously not] THE BEST TURN, SIR. Continue right one four zero to pick it up.” The captain replied, “We’ll figure this one out.. ..” THE CONTROLLER REPLIED, “GUESS I NEED ALL THE HELP I CAN GET.” [Emphasis added]. The first officer immediately said to the captain, “Got a guy over here” and the captain said, “Yeah.”

At 1717:25, the [P]ilot of the PA28 contacted the TEB [C]ontrol [T]ower, reported that he was 10 miles west at 1,500 feet, when in fact he was about 5 miles west (based on recorded data), and requested permission to proceed overhead of the airport to the Hudson River. The Local Controller acknowledged the transmission and instructed the [P]ilot to report 1 mile “west” of the airport. The [P]ilot acknowledged the instruction.

At 1717:58, the Departure Controller [Steve Kelley] told the DA50 “.. -traffic as you turn back around twelve o’clock less than a mile one thousand seven hundred unverified westbound.” The [C]aptain acknowledged the traffic’s position then said “Geez’s.” At 1718:08, the Departure Controller [Steve Kelley] told the TEB [C]ontrol [T]ower that the DA50 was a mile from CLIFO. The [C]ontroller working the flight data/clearance delivery position in the TEB [C]ontrol [T]ower acknowledged the progress report from the Departure Controller. Four seconds later, the Departure Controller [Steve Kelley] told the DA50, “Thank you sir. Your traffic you’re following [likely a reference to the Twin Bonanza not the Twin Cessna or Cherokee] just overhead TEB this time. Contact the [T]ower one one niner point five. So long.” The [C]aptain acknowledged the instruction.”

(Note: In at least one ATC opinion this was a sloppy call by Kelley – particularly because the “your traffic” was not expressly identified by Kelley as a specific type of plane).

The “missing” page continues:

There were several airplanes landing and taking off from runway 19 at the TEB Airport. At the time the DA50 switched over to the local control frequency, the Local Controller was working six airplanes. The first radio transmission on the frequency picked up on the CVR was at 1718:24, “TEB [T]ower twin Bonanza five niner tango [N1959T] [uh] two miles northwest of airport”. The Local Controller stated, “... continue overhead, report overhead the field...” Another airplane, a Beech Baron (N72BG) was cleared onto the runway to hold for takeoff, one was on short final to land, another was following, one was inbound from the northeast, and the other was the PA28 who initially reported 10 miles west of the [A]irport.

At 1718:39, the PA28, contacted the [T]ower and reported 1 mile to the west, when in fact it was about 2.5 miles west. The Local Controller asked the [P]ilot to flash his landing lights then reported at 1718:46 that he had the airplane in sight, and instructed the [P]ilot to report clear of the airport traffic area [ATA] to the “west.” (During this transmission the altitude alert feature in the cockpit of the DA50 sounded at an altitude of 1,500 feet and at 1718:53 the [F]irst [O]fficer said, “Slats please”).

At 1719:24, the [C]aptain transmitted, “...inside WANES, [ah], inside CLIFO, [A]irport’s in sight”. About the same time, N72BG requested, “... left downwind departure”. However, the Local Controller did not immediately acknowledge either airplane’s report, but transmitted, “Four six Juliet is cleared for takeoff runway one niner”. At 1719:38, the [C]ontroller transmitted, “Bravo golf, remain east of the Hackensack River” and N72BG acknowledged. Immediately, N1959T reported overhead the airport and the Local Controller stated it was number two following traffic (Twin Cessna N68734) on a left base leg over route 80 but he did not state N1959T’s aircraft type. At this same time the DA50 was in a 10° left bank at about 185 knots on a heading of 146° and the [C]aptain stated to the [F]irst [O]fficer, “Better slow it up Alan, we’re following that guy”. The first officer said, “Okay” and he called for flaps. (See figure 2.)

At 1719:54, the Local Controller asked for the call sign of the airplane that reported over CLIFO and the [C]aptain replied “Falcon seven eight four bravo’s coming up overhead with the traffic in sight”. The [C]ontroller stated, “Eight four bravo understand…”

Note: “WANES” is an approach fix approximately 10 miles away from Teterboro. (See Deposition of James Price, November 25, 1985, Page 187).

Finally, before we leave the spoliation of evidence point, consider that my group Quiet Rockland had posted multiple FOIA requests, appeal papers, FAA responses thereto including Steve Kelley personnel file documents, along with many press clippings, at the following URL:
http://tinyurl.com/3yd9em

That website was mysteriously hacked and taken down in the past few weeks. We’re restoring it. Why that is significant, is because the documents posted on the “tinyurl” website conclusive showed that FAA withheld documents from FOIA production, which if produced would have alerted us in late 2007 in the Northeast to Steve Kelley’s role in the 1985 Mid-Air Fairview Aviation Disaster.

Hey. Better late than never, FAA.

* * * * *

In summary, there is ample evidence of Steve Kelley’s participation in the 1985 Fairview air-crash, and ample reason to dislodge him from any Airspace Redesign function whereby he participates in routing planes over densely-populated areas.

What follows is a more complete Transcript, the NY Times Article, my past FOIA requests to FAA for Steve Kelley’s employment file, and an epilogue.







VIII. THE TRANSCRIPT

Let’s look at an actual record of what happened – the Transcript of the audio – a combination of cockpit recordings and radio recordings, transcribed. Let’s carefully review what then-TRACON Controller Steve Kelley actually said, on the air, when vectoring the Falcon towards the Piper. The below is derived from “Appendix C” in the NTSB’s Aircraft Accident Report, and a slightly different document entitled “Specialist’s Factual report…” dated January 2, 1986 also on file with the NTSB. I have proof-read the Transcript, cleaned it up a bit, and at at least one key place interposed Steve Kelley’s “warning” to Teterboro that the falcon was “a mile from CLIFO”, at [17]:18:08.

Note: “CLIFO” is a location checkpoint, (Human Performance Group Factual Report Of Investigation, NTSB, Docket No. SA-489, Exhibit No. 14-A, dated January 10, 1986, Page 2); a compulsory reporting point (Deposition of Lenard Greenberg, February 24, 1986, Page 199); and a final approach fix (Deposition of Joseph Paparazzo, February 25, 1986, Page 31).

I have also interposed the names of human beings as the speakers, where discernable. I use human being names instead of abbreviations, because I want no one to forget that these were human beings who died due to ATC error and other causes:

APPENDIX C
COCKPIT VOICE RECORDER TRANSCRIPT
TRANSCRIPT OF A SUNDSTRAND AV577-C COCKPIT VOICE RECORDER, S/N
9650, REMOVED FRON THE FALCON 50 WHICH WAS INVOLVED IN A
MIDAIR COLLISION NEAR THE TETERBORO AIRPORT ON
NOVEMBER 10, 1[9]85

SEE ALSO: NATIONAL TRANSPORTATION BOARD, BUREAU OF TECHNOLOGY –
SPECIALIST’S FACTUAL REPORT OF INVESTIGATION, COCK[P]IT VOICE RECORDER,
BY JAMES R. CASH, AIR SAFETY INVESTIGATOR, JANUARY 2, 1986 –
GROUP CHAIRMAN’S FACTUAL REPORT OF INVESTIGATION, COCKPIT VOICE RECORDER, (TRANSCRIPT OF THE FINAL 12 MINUTES OF THE RECORDING)

LEGEND


CAM Cockpit area microphone voice or sound source
RDO Radio transmission from accident aircraft
-1 Voice identified as Captain
-2 Voice identified as First Officer
-? Voice unidentified
MTWR Morristown New Jersey Local Control (Tower)
TRACON New York Terminal Radar Approach Control (TRACON) – Steven (Steve) Kelley
TWR Teterboro New Jersey Local Control (Tower)
N1959T Aircraft November one nine five nine Tango
NO2V Aircraft November zero two Victor
N1977H Aircraft November one nine seven seven Hotel
N72BG Aircraft November seven two Bravo Golf
N6746J Aircraft November six seven four six Juliet
N68734 Aircraft November six eight seven three four
N915 Aircraft November nine one Sierra
N164 Aircraft November one six four
P163 Aircraft People one sixty three
UNK Unknown
* Unintelligible word
# Nonpertinent word
% Break in continuity
( ) Questionable text
(( )) Editorial Insertion
- - - Pause

Note: All times are expressed in eastern standard time.
-------------------------------------------------------------

Intra-cockpit communications are in regular sentence-case text

AIR-GROUND COMMUNICATIONS ARE IN UPPER-CASE TEXT ONLY

“IDENT” = Activate the identification feature of the transponder

“ATIS” = Automatic Terminal Information Service

“CLIFO” = A point in space, a physical location – a mandatory reporting point on the instrument approach to TEB when an aircraft is not in radar contact with ATC

-------------------------------------------------------------
TIME &
SOURCE CONTENT

17:10:33
RADIO FROM FALCON:
AH TOWER FALCON SEVEN EIGHT BRAVO WITH YA

(Captain calls ready for takeoff to Morristown Tower)


17:10:37
MORRISTOWN TOWER:
FALCON SEVEN EIGHT FOUR BRAVO MORRISTOWN TOWER RUNWAY TWO THREE CLEARED FOR TAKEOFF, WIND TWO THREE ZERO AT SEVEN, USE CAUTION, THERE’S SOME DEER ON THE TIGHT SIDE OF THE RUNWAY JUST ABOUT MID FIELD

17:10:42
CAPTAIN GREGORY L. MILLER: We’ll be lookin’

17:10:44
RADIO FROM FALCON:
EIGHT FOUR BRAVO ROGER, CLEARED FOR TAKEOFF

17: 10:45
FIRST OFFICER ALAN K. STITT: Anti collision light

CAPTAIN GREGORY J. MILLER: All

FIRST OFFICER ALAN K. STITT: Landing lights

CAPTAIN GREGORY L. MILLER: On

17:10:50
FIRST OFFICER ALAN K. STITT: And [ah] igniters and radar

CAPTAIN GREGORY L. MILLER: Igniters are on, radar standin’ by

FIRST OFFICER ALAN K. STITT: Okay transponder, okay we got ---
---


CAPTAIN GREGORY L. MILLER: Transponder on and F.A.T.S

17:10:58
FIRST OFFICER ALAN K. STITT: Flaps and slats set twenty - - - air brakes are stowed and lights are out - - - trims are one two three and speeds are ninety[-]four, one[-]ten one[-]twenty[-]five one[-]seventy we’re lookin’ for ninety[-]nine on the power

17:11:13
CAPTAIN GREGORY L. MILLER: All right you got it

CAPTAIN GREGORY L. MILLER: Ready

FIRST OFFICER ALAN K. STITT: Yup

CAPTAIN GREGORY L. MILLER: You got it

CAPTAIN GREGORY L. MILLER: Here we go

17:11:20
CAM: ((Sound of increasing engine speed))

17:11:28
CAPTAIN GREGORY L. MILLER: Power’s set

17:11:30
CAPTAIN GREGORY L. MILLER: Air speed

17:11:35
CAPTAIN GREGORY L. MILLER: Vee one
---


17:11:36
CAPTAIN GREGORY L. MILLER: And rotate

17:11:42
CAPTAIN GREGORY L. MILLER: Positive rate

FIRST OFFICER ALAN K. STITT: Gear up

17:11:45
FIRST OFFICER ALAN K. STITT: Igniters lights and yaw damper

17:11:49
FIRST OFFICER ALAN K. STITT: Flaps up

17:11:51
MORRISTOWN TOWER: FALCON EIGHT FOUR BRAVO CONTACT DEPARTURE GOOD DAY

17:11:53
RADIO FROM FALCON: GOOD DAY

17:11:58
RADIO FROM FALCON: DEPARTURE SEVEN EIGHT FOUR BRAVO’S WITH YOU OFF MORRISTOWN CLIMBING TO TWO THOUSA[N]D

17:12:02
STEVE KELLEY: FALCON SEVEN EIGHT FOUR BRAV[O] NEW YORK IDENT[] MAINTAIN TWO

17:12:06
CAM: ((Sound of altitude alert)[)]

17:12:07
FIRST OFFICER ALAN K. STITT: Slats up
---

17:12:09
STEVE KELLEY: SEVEN EIGHT FOUR BRAVO IS RADAR CONTACT TWO SOUTH OF MORRISTOWN START A LEFT TURN NOW HEADING ZERO EIGHT ZERO

17:12:15
RDO-1: LEFT TURN ZERO EIGHT AND [AH] WE’RE ONLY GETTING YOU ABOUT TWO BY TWO

[Note: a reference to less-than-ideal radio reception]

17:12:18
STEVE KELLEY: OKAY IT SHOULD GET A LITTLE BETTER WHEN YOU GET SOME ALTITUDE THERE


17:12:24
FIRST OFFICER ALAN K. STITT: Might as well do a[n] after takeoff check here[,] to[o]

CAM-l: Yeah I will

17:12:30
CAPTAIN GREGORY L. MILLER: Left turn zero[-]eight[-]zero two thousand

FIRST OFFICER ALAN K. STITT: Roger

17:12:48
CAPTAIN GREGORY L. MILLER: Okay landing gear

FIRST OFFICER ALAN K. STITT: U[p]

CAPTAIN GREGORY L. MILLER: Yaw damper

FIRST OFFICER ALAN K. STITT: It’s [ah] on
---

17:12:52
RADAR: FALCON SEVEN FOUR BRAVO YOU ARE ON VECTORS FOR A VOR DME[-]ALPHA APPROACH TETERBORO AND [AH] GOOD VISIBILITY [AH] CORRECT[I]ON GOOD VFR VISIBILITY TWO ZERO WINDS ARE TWO FOUR ZERO AT EIGHT VOR DME ALPHA APPROACH OVERHEAD THE AIRPORT LEFT TRAFFIC FOR RUNWAY ONE NINER

17:13:O8
RADIO FROM FALCON: EIGHTY FOUR BRAVO UNDERSTAND

17:13:12
CAPTAIN GREGORY L. MILLER: Landing gear

FIRST OFFICER ALAN K. STITT: It’s up

CAPTAIN GREGORY L. MILLER: Yaw damper

FIRST OFFICER ALAN K. STITT: It’s on

17:13:55
CAPTAIN GREGORY L. MILLER: S[l]ats and flaps

FIRST OFFICER ALAN K. STITT: Are clean

CAPTAIN GREGORY L. MILLER: Anti-ice

FIRST OFFICER ALAN K. STITT: It’s off

17:13:58
CAPTAIN GREGORY L. MILLER: Igniters

FIRST OFFICER ALAN K. STITT: They’re off
---

CAPTAIN GREGORY L. MILLER: Landing [‘er] taxi light, no smoke

FIRST OFFICER ALAN K. STITT: They’re off

17:13:21
CAPTAIN GREGORY L. MILLER: Pressurization

FIRST OFFICER ALAN K. STITT: Set

CAPTAIN GREGORY L. MILLER: Okay a[l]t[i]meters

FIRST OFFICER ALAN K. STITT: Thirty - - -

17:13:25
CAPTAIN GREGORY L. MILLER: I’ll get you the ATIS

17:13:27
CAPTAIN GREGORY L. MILLER: Oxygen

FIRST OFFICER ALAN K. STITT: Set

17:13:29
CAPTAIN GREGORY L. MILLER: Landing lights

FIRST OFFICER ALAN K. STITT: They’re on

17:13:31
CAPTAIN GREGORY L. MILLER: Seatbelt sign

FIRST OFFICER ALAN K. STITT: Not required

CAPTAIN GREGORY L. MILLER: All right - - - entrance curtain

FIRST OFFICER ALAN K. STITT: Open
---

17:13:35
CAPTAIN GREGORY L. MILLER: A[l]titude controller

FIRST OFFICER ALAN K. STITT: Okay [s]et ---

CAPTAIN GREGORY L. MILLER: Set for Teterboro nine

17:13:39
CAPTAIN GREGORY L. MILLER: Ant[i-]icing

FIRST OFFICER ALAN K. STITT: Is [ah] off

17:13:43
CAPTAIN GREGORY L. MILLER: And seatbe[l]t sign --- ca[bi]n

FIRST OFFICER ALAN K. STITT: Seatbelt sign is not required and cabin checked

17:13:52
P163: APPROACH PEOPLE ONE SIXTY THREE IS PASSING EIGHT HUNDRED FOR TWENTY FIVE HUNDRED

17:13:48
CAPTAIN GREGORY L. MILLER: Okay you’re up to the approach check

17:13:55
CAPTAIN GREGORY L. MILLER: You got the center for a minute

FIRST OFFICER ALAN K. STITT: Yeah

17:13:56
STEVE KELLEY: PEOPLE ONE SIXTY THREE NEW YORK DEPARTURE CONTROL IDENT[]
---

17:13:58
ATIS: RUNWAY ONE NINER NOTAM RUNWAY TWO FOUR IS CLOSED FOR LANDINGS ONLY ONE THOU[S]AND FOOTMARKERS RUNWAY ONE NINER MISSING TAXIWAY HOTEL --- TAXIWAY BRAVO, CENTER LIGHTS OUT OF SERVICE, ADVISE ON INITIAL CONTACT THAT YOU HAVE INFORMATION DELTA --- TETERBORO AIRPORT INFORMATTON DELTA TWO TWO ZERO ZERO GREENWICH WEATHER, SKY CONDITION TEN THOUSAND SCATTERED, TWO FIVE THOU[S]AND TH[I]N SCATTERED VISIBILITY TWO ZERO, TEMPERATURE SIX FIVE, DEW POINT FOUR NINER, WIND TWO TWO ZERO AT NINER, ALTIMETER THREE ZERO AT ONE EIGHT, VOR/DME[-]ALPHA APPROACH IN USE, LANDING AND DEPARTING RUNWAY ONE NINER NOTAM

17:14:10
STEVE KELLEY: PEOPLE ONE SIX[T]Y THREE IS RADAR CONTACT CLIMB AND MAINTAIN [S]IX THOUSAND AT ONE THOUSAND EIGHT HUNDRED FEET, TURN RIGHT DIRECT * ((SIMULTANEOUS WITH ABOVE))

17:14:15
P162: OKAY GOIN’ UP TO SIX THOUSAND OUT OF EIGHTEEN HUNDRED DIRECT (SPIRE) ((SIMULTANEOUS WITH ABOVE))

17:14:40
ATIS: ((ATIS COMMUNICATION[S] ENDS))

17:14:41
CAPTAIN GREGORY L. MILLER: All right nineteen’s the runaway VOR alpha to nineteen
---


FIRST OFFICER ALAN K. STITT: Okay

17:14:44
CAPTAIN GREGORY L. MILLER: Three zero one eight on the altimeter - - - they’re ten thousand scattered, twenty miles sixty five degrees winds are two twenty at nine

FIRST OFFICER ALAN K. STITT: [Unintelligible word]

17:14:53
STEVE KELLEY: FALCON SEVEN EIGHT FOUR BRAVO TURN LEFT HEADING ZERO ONE ZERO

17:14:58
RADIO FROM FALCON: ZERO ONE ZERO SEVEN EIGHT FOUR BRAVO

17:15:00
STEVE KELLEY: SEVEN EIGHT FOUR BRAVO AND [AH] YOU CAN START YOUR SPEED BACK IF YOU WOULD SIR TO [AH] ONE EIGHT ZERO YOU’LL BE FOLLOWING A TWIN CESSNA TO TETERBORO I’M GONNA TURN YOU ON JUST OUTSIDE CLIFO

17:15:08
RADIO FROM FALCON: SLOWING TO ONE EIGHTY EIGHT FOUR BRAVO

17:15:21
C[A]M: ((Sound of trim in motion))

17:15:23
C[A]M: ((Sound of trim in motion))
---

17:15:25
CAM: ((Sound of trim in motion))

17:15:29
CAPTAIN GREGORY L. MILLER: One sixteen for Vee ref

17:15:35
CAM: ((Sound of whistle))

17:15:40
STEVE KELLEY: FALCON SEVEN EIGHT FOUR BRAVO TRAFFIC TWELVE O’CLOCK FOUR MILES WESTBOUND [AH] KNOWN VFR WE’RE WORKING HIM HE’S AT TWO THOUSAND FIVE HUNDRED CESSNA ONE SEVENTY TWO HAVE ADDITIONAL VFR TRAFFIC ELEVEN THIRTY AND TWO MILES EASTBOUND SHOWS ONE THOUSAND EIGHT HUNDRED UNVERIFIED

[17:15:56]. . RDO-1: Oh we got a couple of [‘]em out there thank you much eight four bravo

17:15:40
STEVE KELLEY: ROGER

17:15:59
CAPTAIN GREGORY L. MILLER: Got one out then left to right low

FIRST OFFICER ALAN K. STITT: Yeah --- I got him

17:16:03
CAPTAIN GREGORY L. MILLER: And ya got ---
---

17:16:04
STEVE KELLEY: AND SEVEN EIGHT FOUR BRAVO THE ONE I’M PRIMARILY CONCERNED ABOUT IS TWELVE O’CLOCK ABOUT A MILE NOW HEADED EASTBOUND HE’S SHOWING ONE THOUSAND NINER HUNDRED NOW IN THE MODE [‘]C[‘]

17:16:10
RADIO FROM FALCON: HE’S IN SIGHT [AH] EIGHTY FOUR BRAVO

17:16:12
STEVE KELLEY: THANKS VERY MUCH

17:16:29
CAPTAIN GREGORY L. MILLER: There’s the twenty five hundred foot traf[f]ic --- and there’s the nineteen hundred foot traffic

17:16:32
FIRST OFFICER ALAN K. STITT: They’re all over the place today

CAPTAIN GREGORY L. MILLER: Yeah, yeah nice day everybody’s out

FIRST OFFICER ALAN K. STITT: Yeah

17:16:37
CAPTAIN GREGORY L. MILLER: Another one down low up ahead here

17:16:42
CAPTAIN GREGORY L. MILLER: It’s the ones below the horizon that are [h]ard to see

FIRST OFFICER ALAN K. STITT: Yeah
---

17:16:45
CAPTAIN GREGORY L. MILLER: They can get you[,] to[o]

17:16:51
CAPTAIN GREGORY L. MILLER: [Ah] thirty thirty two is [ah]

17:16:55
STEVE KELLEY: FALCON SEVEN EIGHT FOUR BRAVO IS THREE MILES WEST OF CLIFO TURN RIGHT HEADING ZERO NINER ZERO TWO THOUSAND UNTIL ON THE TETERBORO THREE ZERO FIVE RADIAL CLEARED VOR DME[-]ALPHA APPROACH

17:17:04
RADIO FROM FALCON: ZERO NINE ZERO INTERCEPT WE’RE CLEARED THE VOR DME ALPHA SEVEN EIGHT FOUR BRAVO

17:17:1[4]
CAPTAIN GREGORY L. MILLER: Two thousand till you’re on the radial --- when you’re on the radial then you can go down to sixteen if you’re inside [WANES] which is ten point eight out

17:17:29
CAPTAIN GREGORY L. MILLER: They’re every[]where --- now do you remember the frequency thirty two nothing for [ah] Falcon jet[?]

17:17:35
FIRST OFFICER ALAN K. STITT: Ah I don’t know Falcon jet [ah] --- f[or]got [I got?] [the] clip board it there ---
---

17:17:41
STEVE KELLEY: AND FALCON SEVEN EIGHT FOUR BRAVO THAT WAS OBVIOUSLY NOT THE BEST TURN SIR CONTINUE RIGHT ONE FOUR ZERO TO PICK IT UP

17:17:47
RADIO FROM FALCON: WE’LL FIGURE THIS OUT EIGHT FOUR BRAVO THANK YOU MUCH

17:17:50
STEVE KELLEY: GUESS I NEED ALL THE HELP I CAN GET

17:17:52
STEVE KELLEY: PEOPLE ONE SIXTY THREE CLIMB AND MAINTAIN EIGHT THOUSAND

17:17:53
FIRST OFFICER ALAN K. STITT: Got a guy over here

17:17:54
CAPTAIN GREGORY L. MILLER: Yeah

17:17:55
P163: PEOPLE ONE SIXTY THREE’S GOIN’ UP TO EIGHT

17:17:58
STEVE KELLEY: FALCON [AH] SEVEN EIGHT FOUR BRAVO TRAFEIC AS YOU TURN BACK AROUND TWELVE O’CLOCK LESS THAN A MILE ONE THOUSAND SEVEN HUNDRED UNVERIFIED WESTBOUND
---

17:18:05
RDO-1: IN SIGHT EIGHT FOUR BRAVO

17:18:06
STEVE KELLEY: THANK YOU SIR

17:18:06
CAPTAIN GREGORY L. MILLER: [Geez’s]

17:18:08
STEVE KELLEY
(INTERPHONE): Teterboro Falcon Eight Four Bravo is a mile from CLIFO

17:18:11
TETERBORO TOWER
(INTERPHONE): (Unintelligible)

17:18:12
STEVE KELLEY: FALCON EIGHT FOUR BRAVO THANK YOU SIR YOUR TRAFFIC YOU’RE FOLLOWING JUST OVERHEAD TETERBORO THIS TIME CONTACT THE TOWER ONE ONE NINER POINT FIVE SO LONG

17:18:19
RADIO FROM FALCON: NINETEEN FIVE GOOD NIGHT

17:18:24
N1959T: TETERBORO TOWER --- TWIN BONANZA FIVE NINER TANGO [UH] TWO MILES NORTHWEST OF AIRPORT

17:18:29
CAPTAIN GREGORY L. MILLER: CLIFO is mandatory at sixteen hundred

17:18:29
TWR: FIVE NINER TANGO TETERBORO TOWER --- CONTINUE OVERHEAD --- REPORT OVERHEAD THE FIELD --- ZERO TWO VICTOR TURN RIGHT AT HOTEL, CONTACT GROUND POINT NINER

FIRST OFFICER ALAN K. STITT: Yeah ---

17:18:37
N02V: ZERO TWO VICTOR
---

17:18:39
PILOT MARLON J. MOSS: TETERBORO TOWER, CHEROKEE ONE NINE SEVEN SEVEN HOTEL ONE MILE TO THE WEST

17:18:42
TWR: ONE NINER SEVEN SEVEN HOTEL FLASH YOUR LANDING LIGHT

17:18:46
TWR: ONE NINER SEVEN SEVEN HOTEL IS IN SIGHT REPORT CLEAR OF THE AIRPORT TRAFFIC AREA TO THE WEST

17:18:48
CAM: ((Sound of altitude alert)) – (1,500)

17:18:50
PILOT MARLON J. MOSS: SEVEN HOTEL

17:18:53
FIRST OFFICER ALAN K. STITT: Slats please

17:18:35
CAPTAIN GREGORY L. MILLER: Comin’

17:18:56
TWR: SEVEN TWO BRAVO GOLF, CLEARED FOR TAKEOFF

17:18:57
N72BG: BRAVO GOLF ROLLING

TWR: SEVEN THREE FOUR CLEARED TO LAND, WIND TWO TWO ZERO AT SIX
---

17:18:59
N6746J: TETERBORO TOWER THIS IS CHEROKEE SIX SEVEN FOUR JULIET HOLDING SHORT OF [AH] ONE NINE ON[E] BRAVO FOR TAKEOFF [AH] LINCOLN PARK DESTINATION ((SIMULTANEOUS WITH ABOVE))

17:19:08
TWR: HOLDING SHORT OF NINETEEN I STEPPED ON YOU, SAY AGAIN

17:19:11
N6746J: [UH], SIX SEVEN FOUR SIX JULIET, [UH], I’D LIKE A RIGHT TURN OUT IF POSSIBLE TO L[I]NCOLN PARK

17:19:17
TWR: SIX SEVEN FOUR SIX JULIET TAXI INTO POSITION AND HOLD RUNWAY ONE NINER, RIGHT TURN WILL BE APPROVED

17:19:22
N6746J: [UH] ROGER, FOUR SIX JULIET

17:19:24
RADIO FROM FALCON: FALCON SEVEN EIGHT FOUR BRAVO INSIDE [WANES] [AH] INSIDE CLIFO [AH] AIRPORT[‘]S IN SIGHT

17:19:31
N72BG: BRAVO GOLF’S REQUESTING LEFT DOWNWIND DEPARTURE
---

17:19:33
TWR: FOUR [S]IX JULIET’S CLEAR FOR TAKEOFF RUNWAY ONE NINER

17:19:35
N6746J: ROGER [F]OUR SIX JAY IS ROLLING

17:19:3[6]
TWR: BRAVO GOLF REMAIN EAST OF THE HACKENSACK RIVER

17:19:39
N72BG: BRAVO GOL[F]

17:19:41
NL959T: FIVE NINER TANGO OVERHEAD

17:19:45
CAPTAIN GREGORY L. MILLER: Better slow it up Alan, we’re following that guy ---

17:19:45
TWR: Five niner tango number two following traffic on left base over [R]oute [E]ighty

FIRST OFFICER ALAN K. STITT: Okay

17:19:48
FIRST OFFICER ALAN K. STITT: Flaps *

17:19:49
N1959T: FIVE NINER TANGO IN SIGHT

17:19:51
TWR: SEVEN THREE FOUR CLEARED TO LAND
---

17:19:53
N68734: SEVEN THREE FOUR

17:19:54
TWR: INSIDE CLIFO SAY AGAIN CALL SIGN(?)

17:19:56
RADIO FROM FALCON: FALCON SEVEN EIGHT FOUR BRAVO’S COMING
UP OVERHEAD WITH THE TRAFFIC IN SIGHT

17:20:01
TWR: EIGHT [F]OUR BRAVO, UNDERSTAND YOU’RE OVERHEAD THE FIELD SIR

17:20:04
RADIO FROM FALCON: YE[S] SIR

17:20:05
TWR: OKAY, PLAN NUMBER THREE FOLLOWING TRAFFIC TURNING DOWNWIND ABEAM THE TOWER ADDITIONAL TRAFFIC IS AT YOUR ONE O’CLOCK WESTBOUND [note error – TWR should have said “eastbound”] AT ONE POINT FIVE

17:20:13
RDO-1: WE’RE LOOKIN’ EIGHT FOUR BRAVO

17:20:14
TWR: OKAY [SIR], YOU’RE CLOSING ON HIM, HE’S [UH] LIGHT AIRCRAFT AT [UH] YOUR ONE TO TWELVE O’CLOCK WESTBOUND [note error – TWR should have said “eastbound”].

17:20:14
FIRST OFFICER ALAN K. STITT: Flaps twenty gear down before landing checklist

17:20:18
CAPTAIN GREGORY L. MILLER: You’re eat[in] ‘em up
---

17:20:19
C[A]M: ((Sound of landing [r]ear warning horn starts))

17:20:21
N91S: TETERBORO TOWER, NINE ONE SIERRA IS READY TO GO

17:20:26
TWR: SEVEN SEVEN HOTEL TRAFFIC IS A FALCON JET OVERTAKING YOU FROM YOUR [AH] SIX O’CLOCK [AH] LOO-

17:20:28
C[A]M: ((Sound of landing gear warning horn stops))

17:20:35
N164: [UH] ROGER SIR ABC TOWERS

17:20:39
CAPTAIN GREGORY L. MILLER: Another one down low

FIRST OFFICER ALAN K. STITT: [Unintelligible word]

17:20:41
CAPTAIN GREGORY L. MILLER: Beneath him

17:20:41
TWR: EIGHT FOUR BRAVO, YOU HAVE THE TRAFFIC SIR

FIRST OFFICER ALAN K. STITT: I see [ace?] him

17:20:43
RADIO FROM FALCON: AFFIRMATIVE
---

17:20:45
TWR: OKAY SIR MAINTAIN VISUAL

17:20:46
N6746J: FOUR SIX JULIET IS BEGINNING A RIGHT CROSSWIND

17:20:50
TWR: FOUR SIX JULIET [AH] UNDERSTAND YOU[‘RE] BEGINNING A RIGHT CROSSWIND SIR?

17:20:50[54?]
CAM: ((Sound of whistle))

17:20:54
N6746J: ROGER, UNDERSTAND I’M CLEARED FOR A RIGHT TURN OUT

17:20:56
TWR: YES SIR, A RIGHT TURN OUT HAS BEEN APPROVED SIR, REMAIN SOUTH OF THE TETERBORO THREE ZERO [F]IVE RADIAL

17:21:00
FIRST OFFICER ALAN K. STITT: What kind of Cessna is that[?]

17:21:01
CAPTAIN GREGORY L. MILLER: I don’t know

17:21:02
N6746J: AH ROGER, WILL DO, THANK YOU VERY MUCH

17:21:04
N91S: NINE ONE SIERRA TO NUMBER ONE FOR ONE NINER
---

17:21:05
CAM-l: I’ll ask him

17:21:07
TWR: READY FOR RUNWAY ONE N[I]NER, HOLD SHORT

17:21:09
N91S: NINE ONE SIERRA

17:21:11
N164: ROGER SIR, I JUST CROSSED THE ARC TOWERS

17:21:16
TWR: FIVE NINER TANGO CLEARED TO LAND, MAKE SHORT APPROACH RUNWAY ONE NINER

17:21:19
N1959T: FIVE NINER TANGO

17:21:21
FIRST OFFICER ALAN K. STITT: Let’s go full flaps

1.7:21:22
CAPTAIN GREGORY L. MILLER: Hey watch out, this guy’s comin’ right at us

17:21:25
PILOT MARLON J. MOSS: TETERBORO TOWER CHEROKEE ONE NINE SEVEN SEVEN HOTEL CLEAR TO THE EAST

17:21:26
CAPTAIN GREGORY L. MILLER: [G]o down
---

17:21:28
CAPTAIN GREGORY L. MILLER: Naw go up

17:21:28
TWR: SEVEN SEVEN HOTEL ROGER, FREQUENCY CHANGE APPROVED

17:21:30
CAM: ((Sound of impact))

17:21:31
FIRST OFFICER ALAN K. STITT: Ah [“non-pertinent” word][likely an expletive]

CAPTAIN GREGORY L. MILLER: [Two unintelligible words] ((simultaneous with above))

17:21:34
CAPTAIN GREGORY L. MILLER: Oh on[Oh oh?][Oh no?]

17:21:35
CAPTAIN GREGORY L. MILLER: Oh Alan

17:21:37
CAPTAIN GREGORY L. MILLER: Alan

17:21:39
FIRST OFFICER ALAN K. STITT: [Two unintelligible words]

CAPTAIN GREGORY L. MILLER: Oh no

17:21:41 ((End of Recording))

---------------------------------------------------------------------------------

IX. THE TIMES ARTICLE


http://query.nytimes.com/gst/fullpage.html?res=9B0DE2DF1239F93BA25750C0A961948260

‘85 PLANE CRASH LAID TO FAILURE BY CONTROLLERS By RICHARD WITKIN

SPECIAL TO THE NEW YORK TIMES
Published: March 18, 1987

LEAD: The National Transportation Safety Board, ending its inquiry into a fatal midair collision near Teterboro (N.J.) Airport in November 1985, said today that the probable causes were a breakdown in traffic control and the inability of the crew of a corporate jet to “see and avoid” the other plane.

The National Transportation Safety Board, ending its inquiry into a fatal midair collision near Teterboro (N.J.) Airport in November 1985, said today that the probable causes were a breakdown in traffic control and the inability of the crew of a corporate jet to “see and avoid” the other plane.

The four-member board said the jet pilots’ difficulties stemmed from a controller’s “erroneous and inadequate” reports about traffic and the limits of vision and reaction time at night.

To prevent similar accidents, the panel urged the Federal Aviation Administration to install advanced radar equipment in such towers as Teterboro and to move to allow Teterboro to use radar in everyday traffic control.

The two craft were a three-engine Falcon 50 corporate jet and a single-engine Piper Archer piston plane. Touching off a fireball visible for miles, the planes plunged into Fairview and Cliffside Park, N.J., small communities across the Hudson from the Upper West Side of Manhattan.

Contribution by Management. All five people on the two planes and one person on the ground were killed. Eight others were injured. The board strongly criticized F[]A[]A[] officials responsible for controlling air traffic at Teterboro and through the area. In its report, which was unanimously adopted, the board said management had contributed to the accident by failing to [e]nsure that controllers followed prescribed procedures in guiding planes. The report faulted management for “failing to recognize and correct operational deficiencies”.

A board member, John Lauber, suggested that the controller on duty might have kept closer visual watch on the converging planes, even after the jet crew had reported that they had the other plane in sight.

“He had good data on the radar and his own visual view that could have been a back-up for the crew”, Mr. Lauber said. “At that point, no back-up was used. Yet there was information that could have been used to avoid the accident, I think”.

Information Called Imprecise. In citing “erroneous” reports to the jet’s pilots, the board was primarily referring to the controller’s telling them two times that the other plane was going west when it was going east.

Board members also cited the controller’s failure to give more precise information on the other planes in the area and on the fact that the Piper was simply flying through the area, not intending to land at Teterboro.

The report said the events began when the jet took off from nearby Morristown, NJ, about 19 minutes before originally scheduled. The takeoff bypassed a computerized “flight strip” system. The strip, showing the plane’s identity and its intention to land at Teterboro, would have been automatically sent to Teterboro. The controller who directed the plane had no warning it was coming.

Series of Remedial Actions. The controller was busy with five other planes. But advance notice of the jet’s arrival might have allowed him to take firmer action to avert a conflict, the board suggested.

The F[]A[]A[] has taken steps that have already, or eventually should, meet the recommendations. The area around Teterboro has been separated into inner and outer sectors, making it possible to use two controllers on two radio frequencies.

---------------------------------------------------------------------------------

---------------------------------------------------------------------------------

X. THE YEAR 2007 FOIA REQUESTS AND APPEALS TO THE FAA

Law Office of John J. Tormey III, Esq.
John J. Tormey III, PLLC
217 East 86th Street, PMB 221
New York, NY 10028 USA
(212) 410-4142 (phone)
(845) 735-9691 (phone and voicemail)
(212) 410-2380 (fax)
e-mail: “jtormey@optonline.net”
“http://www.tormey.org”

(NEW) REQUEST UNDER FREEDOM OF INFORMATION ACT (“FOIA”)
5 UNITED STATES CODE SECTION 552 ET SEQ. (5 U.S.C. §552)

Wednesday, July 25, 2007

VIA E-MAIL: “steve.kelley@faa.gov”, “faa.deis@ngc.com”, and U.S. MAIL
Mr. Steve Kelley
U.S. Department of Transportation - Federal Aviation Administration (FAA)
800 Independence Avenue, SW
Washington, DC 20591 USA

VIA E-MAIL: “scott.ctr.carpe@faa.gov”, and U.S. MAIL
Mr. Scott Carpenter
U.S. Department of Transportation - Federal Aviation Administration (FAA)
800 Independence Avenue, SW
Washington, DC 20591 USA

VIA E-MAIL: “pete.ctr.nelso@faa.gov”, and U.S. MAIL
Mr. Pete Nelson
U.S. Department of Transportation - FAA, Eastern Region
159-30 Rockaway Boulevard
Jamaica, NY 11434-4848 USA

VIA E-MAIL: “pete.ctr.nelso@faa.gov”, and U.S. MAIL
Mr. Pete Nelson
U.S. Department of Transportation - FAA, Eastern Region
1 Aviation Plaza
Jamaica, NY 11434-4809 USA

VIA FAX: 1-404-305-6345, and U.S. MAIL
Ms. Sabrina Jemison, AJO-2E5
FOIA Coordinator
FAA, Eastern Service Center Air Traffic Organization
P.O. Box 20636
Atlanta, GA 30320 USA

VIA FAX: 1-718-995-5663, and U.S. MAIL
Ms. Trina Hankerson, FOIA Coordinator
FAA Eastern Region, AEA-60
1 Aviation Plaza
Jamaica, NY 11434-4809 USA

VIA U.S. MAIL
Marion C. Blakey, Administrator
U.S. Department of Transportation - Federal Aviation Administration (FAA)
Orville Wright Building (FOB10A)
FAA National Headquarters
800 Independence Ave., SW
Washington, DC 20591 USA

Re:
The People of Rockland County, New York adv. FAA
The FAA’s Current Plan To Direct Incremental Airplane Traffic Over Rockland County, New York

Dear Sirs/Mesdames:

I am an attorney in New York and a citizen and resident of Rockland County, New York.

Under Title 5 of the United States Code, Section 552 (5 U.S.C. §552) (“FOIA”), request and demand is hereby made that you, your colleagues, your office, and your offices, each timely provide to this, my law office, full, complete, unredacted, and otherwise unexpurgated photocopies of each and every pictorial image, photo, screen-shot, print-out, document, and other item of material (collectively, “Documents”) which may be at all responsive to the following itemized requests 1.A. through 1.Z hereinbelow:

1. Dating from January 1, 1980 forward, the full and complete “employment file”, “personnel file”, “human resources file”, or other compilation of documents and Documents however otherwise-monikered, which reflects the full facts and circumstances of the employ or other hiring and work duties of Mr. Steve Kelley of the FAA, including without limitation the following specific items:

A. All Documents reflecting the terms and other provisions of Mr. Kelley’s hiring (and re-hiring if and as applicable), including with respect to the air traffic controllers’ strike of circa 1982 and any sequelae thereto, and all employment agreements, offer letters, acceptance letters, and other items materializing at or around the time of Mr. Kelley’s hiring (and re-hiring if and as applicable).

B. All Documents reflecting any termination of Mr. Kelley from any employ including from the FAA or as an air traffic controller, or any demotion or downgrade in Mr. Kelley’s pay, title, perks, benefits, or job responsibilities, if any.

C. All Documents reflecting any past application for employment, or application for promotion, by or relating to Mr. Kelley.

D. All Documents reflecting Mr. Kelley’s pay, pay grade, and salary level, past and current.

E. All Documents reflecting Mr. Kelley’s titles and promotions, past and current.

F. All Documents reflecting Mr. Kelley’s assigned job duties and actual job duties, past and current.

G. All Documents reflecting any communication from any person or individual as to Mr. Kelley’s fitness or suitability vel non for any work-related function for the FAA, as an air traffic controller, or otherwise.

H. All Documents reflecting the reason or reasons for Mr. Kelley’s cessation or other discontinuation of work as an air traffic controller, or cessation or other discontinuation of work in any other function or capacity.

I. All Documents reflecting any past, present, or pending censure, suspension, or other disciplinary action or analogue thereof taken against Mr. Kelley, if any.

J. All Documents reflecting any past, present, or pending litigation, administrative proceeding, or other claim or proceeding initiated against Mr. Kelley individually, or against him and others; and specifically, all Documents reflecting any resolution thereof, if any.

K. All Documents reflecting any conflict-of-interest, apparent conflict-of-interest, claimed conflict-of-interest, or claim or disclosure thereof, which in any way may relate to Mr. Kelley, if any.

L. All Documents wherein Mr. Kelley is ordered, directed, or otherwise told - by any person, persons, entity, or entities - to effect the proposed FAA Air Space Redesign project so as to route inbound Newark, NJ Runway 22 arrivals over all or any part of Rockland County, New York.

M. All Documents wherein Mr. Kelley is directed by any person, persons, entity, or entities, to effect - within a specified deadline or period of time - the proposed Air Space Redesign project so as to route inbound Newark, NJ Runway 22 arrivals over all or any part of Rockland County, New York.

N. All Documents reflecting any economic or other compensation or reward accorded, committed, promised or otherwise represented to Mr. Kelley for or in connection with his work on or completion of the Air Space Redesign and/or establishment of any new or revised flight path over Rockland County, New York.

O. All Documents reflecting any possible reason why Mr. Kelley, in a July 12, 2007 meeting with the public in Ramapo, New York, referred to himself as a “recovering air traffic controller”.

P. All Documents reflecting the jurisdiction, state, county, city, village, town, and/or hamlet in which Mr. Kelley himself resides or owns property; and additionally, in which any spouse, domestic partner, or immediate family member of Mr. Kelley resides or owns property.

Q. All Documents reflecting any communication which Mr. Kelley has had regarding Air Space Redesign, with any person or entity located within Tuxedo Park, NY; Saddle River, NJ; Upper Saddle River, NJ; Warwick, NY; or Greenwood Lake, NY.

R. All Documents reflecting any past contributions Mr. Kelley may have made to any charitable causes including environmental causes and political candidates.

S. All Documents reflecting any decision made by Mr. Kelley, or in which Mr. Kelley was otherwise involved, to avoid placing the newly-proposed Rockland County, NY flight path over any piece of principally-uninhabited parkland, including without limitation land in Harriman State Park and the Torne Valley.

T. All Documents reflecting any decision made by Mr. Kelley, or in which Mr. Kelley was otherwise involved, to avoid placing the newly-proposed flight path over Rockland County, New York over land inhabited in whole or in part by the “Ramapo Indians”.

U. All Documents reflecting all persons and entities within the FAA and otherwise to whom Mr. Kelley reports, and each of its and their full and complete contact information.

V. All Documents reflecting all dollar amounts caused to be spent by Mr. Kelley or otherwise authorized by Mr. Kelley to be spent, in connection with the Air Space Redesign, and/or the routing and/or mapping of intended flights over Rockland County, New York.

W. All Documents, dated or otherwise generated between January 1, 1980 and July 12, 2007, reflecting any decision-making or other dialogue conducted by Mr. Kelley, or in which Mr. Kelley otherwise participated, to the effect that a public hearing or other hearing would deliberately not be held in Rockland County, New York.

X. All Documents, dated or otherwise generated between January 1, 1980 and July 12, 2007, reflecting any decision-making or other dialogue conducted by Mr. Kelley or in which Mr. Kelley otherwise participated, to the effect that opposition to the new flight plan by residents of Rockland County, New York should be squelched, suppressed, or otherwise limited.

Y. All Documents reflecting any communication between Commissioner Marion Blakey on the one hand, and Mr. Kelley on the other hand, relating to the Air Space Redesign and/or intended placement of new flight paths through Rockland County, New York.

Z. A copy of all current business cards of Mr. Kelley, and all of his current contact information including all mailing addresses, work addresses, fax numbers, phone numbers, cell phone numbers, and e-mail addresses.

Digital Copies. I am specifically requesting digital copies herein, to spare costs. The Documents which I am requesting herein are not available on the FAA website. I am legally entitled to digital copies. 6 U.S.C. §552(a)(3)(B) reads, in relevant part:

“(B) In making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section.

(C) In responding under this paragraph to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency’s automated information system.

(D) For purposes of this paragraph, the term “search” means to review, manually or by automated means, agency records for the purpose of locating those records which are responsive to a request.” [Emphasis added].

Waiver Of Copying Fees. Please be advised that you and your agency are required to waive all photocopying and retrieval fees for this FOIA request pursuant to 5 U.S.C. §552(a)(4)(A)(iii), which reads, in relevant part:

“(iii) Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” [Emphasis added].

Disclosure of the herein-FOIA-requested material relates to the proposed new airplane flight path intended to cut a swath through the middle of Rockland County, New York. The herein-FOIA-requested material is clearly in the public interest, and clearly likely to contribute significantly to the public understanding of the operations and activities of the FAA. In fact, upon my receipt of the herein-FOIA-requested material from you, I intend to further forward copy such material to the news media, public officials, and members of the public here in Rockland County - by myself. Moreover, I have no commercial interest in this matter, and I am requesting these Documents as a Rockland County homeowner and a private citizen.

Your Immediate Reply Is Required By This Friday, July 27, 2007. As you know, the Freedom of Information Act normally requires that any agency, including your own FAA, must respond to a request such as this one within twenty (20) days of receipt of the request, pursuant to 5 U.S.C. §552(a)(6)(A) which reads, in relevant part:

“(A) Each agency, upon any request for records made under paragraph (1), (2),
or (3) of this subsection, shall—

(i) determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; and

(ii) make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal. If on appeal the denial of the request for records is in whole or in part upheld, the agency shall notify the person making such request of the provisions for judicial review of that determination under paragraph (4) of this subsection.”

However, exigent circumstances and my compelling need exist in this case, which require you and your agency to reply to me with the FOIA-requested Documents in full by this Friday, July 27, 2007, via “expedited processing” as that phrase is defined in FOIA. Without prejudice to any right or claim, demand is hereby made that the subject Documents be furnished by you so as to be received in full by me prior to next Monday’s intended hearing with the FAA on the same subject matter in Hillburn, New York - and specifically, on or before Friday, July 27, 2007.

It is the FAA that short-noticed Rockland County on what is ostensibly our last public hearing on the matter, to be held this coming Monday, in five (5) short days - and this meeting’s date and time was only first announced one (1) day ago. It is the FAA’s own conduct which has created my compelling need for the FOIA-requested Documents as that phrase is defined in FOIA. An agency is required to produce Documents via “expedited processing” pursuant to 5 U.S.C. §552(a)(6)(E)(i), which reads, in relevant part:

“(E)

(i) Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing for expedited processing of requests for records—

(I) in cases in which the person requesting the records demonstrates a compelling need; and

(II) in other cases determined by the agency.

(ii) Notwithstanding clause (i), regulations under this subparagraph must ensure—

(I) that a determination of whether to provide expedited processing shall be made, and notice of the determination shall be provided to the person making the request, within 10 days after the date of the request; and

(II) expeditious consideration of administrative appeals of such determinations of whether to provide expedited processing.

(iii) An agency shall process as soon as practicable any request for records to which the agency has granted expedited processing under this subparagraph. Agency action to deny or affirm denial of a request for expedited processing pursuant to this subparagraph, and failure by an agency to respond in a timely manner to such a request shall be subject to judicial review under paragraph (4), except that the judicial review shall be based on the record before the agency at the time of the determination.

(iv) A district court of the United States shall not have jurisdiction to review an agency denial of expedited processing of a request for records after the agency has provided a complete response to the request.

(v) For purposes of this subparagraph, the term “compelling need” means—

(I) that a failure to obtain requested records on an expedited basis under this paragraph could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or

(II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.

(vi) A demonstration of a compelling need by a person making a request for expedited processing shall be made by a statement certified by such person to be true and correct to the best of such person’s knowledge and belief.

(F) In denying a request for records, in whole or in part, an agency shall make a reasonable effort to estimate the volume of any requested matter the provision of which is denied, and shall provide any such estimate to the person making the request, unless providing such estimate would harm an interest protected by the exemption in subsection (b) pursuant to which the denial is made.”

I hereby certify that: (A) the FAA’s failure to timely produce the requested Documents will ostensibly pose an imminent threat to the physical safety and potentially the lives of my fellow Rockland County, New York residents, to the extent that a flight path is placed over our heads on a permanent or semi-permanent basis without our meaningful input in the decision-making process; and (B) the herein-FOIA-requested material will further enable our meaningful input in the decision-making process; and (C) I am primarily engaged in disseminating information, as elsewhere cited herein and as clearly indicated by the many cc’s to this FOIA request, and it is urgent that I inform the public of the material which will be produced in response to this FOIA request; and (D) my need for the within-requested documents is expected to establish that Mr. Kelley acted arbitrarily and capriciously and with callous disregard for the due process and other rights of Rockland County citizens in endeavoring to cram-down this new proposed flight path on Rockland County; and (E) my compelling need for expedited processing of this FOIA request is supported by this and all my other statements herein which are true and correct to the best of my knowledge and belief.

Appeals. In the event that any portion of my request is denied, please inform me of each of the specific reasons for any such denial in writing - and provide me with the name, address, and other contact information of the person or entity to whom an appeal should, and will, be directed.

If that happens, there will be appeals.

Penalties For Spoliation Or Concealment Of Documents. Please be further advised that it is a violation of law for any person or entity to hinder the production of documents responsive to a FOIA request, and I will be entitled to a recovery of attorney fees if same occurs. 5 U.S.C. §552(a)(4)(B) reads, in relevant part:

“(B) On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action. In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency’s determination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).

(C) Notwithstanding any other provision of law, the defendant shall serve an answer or otherwise plead to any complaint made under this subsection within thirty days after service upon the defendant of the pleading in which such complaint is made, unless the court otherwise directs for good cause shown.

(E) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.

(F) Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends.

(G) In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member.”

Headings. Please be further advised that the topic-headings and underlinings I am using above, are for our convenience of reference purposes only, and should not be deemed to limit the requests in any way.

Cumulative And Non-Exhaustive Requests. This FOIA request is not exhaustive; does not preclude the making of additional or follow-up requests by me or by any other party; and is made without prejudice to all rights and remedies, all of which are hereby expressly reserved.

Thank you for your courtesies and responsiveness, which I anticipate, and will very much appreciate.

Very truly yours,
John J. Tormey III, Esq.

---------------------------------------------------------------------------------

Law Office of John J. Tormey III, Esq.
John J. Tormey III, PLLC
217 East 86th Street, PMB 221
New York, NY 10028 USA
(212) 410-4142 (phone)
(845) 735-9691 (phone and voicemail)
(212) 410-2380 (fax)
e-mail: “jtormey@optonline.net”
“http://www.tormey.org”

APPEAL OF RESPONSE BY THE FAA’S AND USDOT’S
“AIR TRAFFIC ORGANIZATION, EASTERN SERVICE CENTER”
TO MY (2ND) FOIA REQUEST #2007-006536(ES) DATED JULY 25, 2007

FOIA CONTROL NO. 2007-006536(ES)

UNDER THE FREEDOM OF INFORMATION ACT (“FOIA”)
5 UNITED STATES CODE SECTION 552 ET SEQ. (5 U.S.C. §552[a][6])

Tuesday, September 4, 2007

VIA TRACK-ABLE USPS EXPRESS MAIL
Assistant Administrator for Regions and Center Operations, ARC-1
Federal Aviation Administration
800 Independence Avenue, S.W.
Washington, DC 20591 USA

Re:
The People of Rockland County, New York adv. FAA
The FAA’s Current Plan To Direct Incremental Airplane Traffic Over Rockland County, New York

Dear Sirs/Mesdames:

The within and following is my Freedom Of Information Act (“FOIA”) Appeal, made under 5 U.S.C. §552(a)(6):

1. Murphy’s Gross Mistake. Mr. Douglas R. Murphy, Regional Administrator, Southern Region, has made a horrible and misleading gaffe in his and the FAA’s letter to me dated August 22, 2007. (Please see Exhibit “C” annexed hereto; and, as is the case with all other Exhibits hereto, incorporated herein by this reference). Murphy’s gaffe itself frustrates and prevents further response and must be corrected immediately on written record.

2. Murphy’s Mistake Itself Prevents My Appeal. This blunder made by Mr. Murphy and the FAA is so inexplicable and inexcusable - and so severely threatens and prejudices my FOIA and other rights and those rights of all Rockland County, New York residents - that I herewith take this immediate appeal of Mr. Murphy’s August 22, 2007 letter (the “Murphy Letter In Error”). Additionally, I am making this motion to strike the Murphy Letter In Error as completely non-responsive, given that is completely defective on its face. The FAA and Murphy have failed to comply with the FOIA statute once again.

3. The FAA Mistake Is Unthinkable. I cannot believe that a federal governmental agency charged with the responsibility of providing accurate information to the public, and also charged with the sacred responsibility of protecting the lives of those of us on the ground over whom FAA-sanctioned jumbo jet aircraft fly, would make this kind of mistake. If I and the Rockland County public can’t trust the FAA to get its facts right, then why in the world should we trust the FAA to be able to steer aircraft away from our heads and homes and families on a safe course?

4. The July 25 FOIA. I served a FOIA request on the FAA on July 25, 2007. (Exhibit “A”). The July 25, 2007 FOIA request seeks, inter alia, twenty-six (26) categories and items of documents and materials relating to the personnel file and human resources file of FAA’s NY/NJ/PA Airspace Redesign Project Manager Steve Kelley. As the FAA has put Kelley in a position of responsibility in determining the location of new flight paths as well as the notifications and dissemination of information to the public thereby affected, and given that numerous people including myself have already raised serious concerns about Kelley’s fitness to make those decisions and carry out those mandates, the FAA’s response to the July 25, 2007 FOIA is vital and is urgently needed.

5. The Significance Of The Kelley Personnel File. The July 25, 2007 FOIA request calling for Steve Kelley’s personnel records is an important request given inter alia Kelley’s odd and inappropriate nervous laughter at the July 12, 2007 Ramapo, New York meeting with the FAA and Rockland County citizens, and his verbal self-references at that meeting of an Etheridgian “Yes I am a federal bureaucrat” and that he was, in his own words again, a “recovering” air traffic controller (please see the videotape of the FAA meeting with Rockland County residents held in Ramapo, New York on July 12, 2007 currently posted on the Internet website “http://www.ramapo.org” at its “Live and Archived Video” section [“Ramapo July 12 Video”]; at time-code “00:19:45”). We want to know, among other things, what it actually is that Mr. Kelley may have “recovered” from. His joke, if it was one, was no joke to us. Aside from the clearly-objectionable conduct and FAA plans he espoused, Kelley’s weird and disturbing mannerisms and comments at the July 12 meeting shook the faith of Rockland County citizens in the FAA and the sanctity vel non of its decision-making, including my own faith - and led Rockland County citizens such as myself to believe that this was not at all the man who should be making policy decisions affecting our legal rights, safety, health, and quality of life. He wholly lacks the comportment of a responsible federal official.

6. The Chatman Control Number Assignment. Attached as Exhibit “B” is the FAA’s July 26, 2007 reply to my July 25, 2007 FOIA request for, inter alia, Steve Kelley’s personnel documents. Written by an FAA FOIA coordinator named Linda Chatman, the letter (“Chatman Control Number Assignment”) read:

“This letter acknowledges receipt of your FOIA request dated July 25, 2007, concerning a possible [emphasis added!] employment/personnel file for S. Kelley, including employ and hiring duties”.

The Chatman Control Number Assignment, not just once, but twice, specifically referenced control number 2007-006536 to my July 25 FOIA request for Steve Kelley’s personnel file. The “Re:” header of the letter read “Freedom of Information Act (FOIA) Request 2007-006536”. Perhaps even better yet, the closing of the Chatman Control Number Assignment read: “Please refer to the above referenced number on all future correspondence regarding this request”. (Emphasis added). And that’s exactly what I am doing here - referencing the number Chatman and the FAA assigned to me. Finally, Chatman’s notion that the Kelley personnel file is merely “possible” as opposed to actual, is a complete and ludicrous insult to the intelligence of every single one of Rockland County, New York’s approximate 285,000 residents.

7. The Murphy Wholesale Adoption Of The Chatman Control Number. Then next arrived Douglas R. Murphy’s August 22, 2007 letter to me, itself citing:

“Subject: Freedom of Information Act (FOIA) Request 2007-006536(ES)”

the identical number assigned to me by Ms. Chatman in her initial but non-substantive reply to my July 25, 2007 FOIA request for (inter alia) Steve Kelley’s personnel file. (Exhibit “C”). Incidentally this August 22, 2007 Murphy letter was an untimely response to my July 25, 2007 FOIA as it was not issued within the statutorily-prescribed timetable of twenty (20) days, as further discussed hereinbelow.

8. The Murphy Gaffe. Then, unbelievably, Murphy and the FAA completely screwed-up the response within the very first textual paragraph of the Murphy Letter In Error:

“This is an Air Traffic Organization, Eastern Service Center response to your FOIA request dated July 24, 2007 requesting a fee waiver and expedition of your request for hard copies of pictorial map images depicting the proposed new Federal Aviation Administration flight path intended to cut through Rockland County, New York”.

Wrong!

9. The FAA Complete Inattention To Detail. If Murphy and his FAA colleagues had even bothered to review the prior two (2) documents in the Kelley personnel file FOIA matter which related to the Chatman-assigned control number of 2007-006536 - just two (2) of those documents! - Murphy would have realized that Request 2007-006536(ES) had nothing to do with my prior FOIA request for pictorial map images. That prior FOIA request for maps was assigned a totally different and prior case number! Murphy, in his Letter In Error, therefore cited either the wrong case number, or else the wrong FOIA request - or perhaps both - and his error leaves me thereupon unable to determine which to appeal! Under FOIA, I am therefore entitled to move that his and the FAA’s entire denial be stricken. Particularly in light of the fact that the FAA has now wasted far too much of my time, I am entitled to an expedited response on each of my FOIA requests, and I am entitled to these materials at no cost under the FOIA statute. I do expect to make a corresponding application to the district court or courts for my time and related fees and expenses spent in straightening out the FAA’s own dumb mistakes, and I will be particularly inclined to do so if the FAA continues to deny me and my fellow Rockland County citizens valuable and needed public information on pretextual, nonsensical, and erroneous bases.

10. Murphy’s Error Prejudices My FOIA Rights. Murphy’s thoughtless and careless error now prejudices my rights and prevents me from responding to the supposed FAA denials of my requests for (A) fee waiver and (B) expedited processing. Indeed, the Murphy Letter In Error is completely contradictory on its face, and now leaves me, the requester, with nary a clue as to which of the two subject FOIA requests - pictorial map images, or Kelley personnel file - have actually received an FAA denial on their respective requests for fee waiver and expedited processing. At minimum, I am now entitled to fee waiver and expedited processing on at least one of the two FOIAs. And I am sure you already know that if I am given the choice as between which of the two (2) FOIAs should be expedited and furnished for free, the documents I want now and immediately are Steve Kelley’s personnel documents.

11. I Am Entitled To A Clean Record For Appeal Purposes. What is a further and complete outrage, is that Murphy and his FAA colleagues are polluting the written record with mistakes like this, and meanwhile I am trying to make a clean written record not only for the sake of taking my unfortunately-inevitable appeals to you, but also to the federal district court, the appellate court, and perhaps beyond. It is obvious from the FAA’s responses to my FOIAs to date that the FAA is inclined to play tactics, games, and hardball. They have now met their match insofar as hardball, and I’m not playing any games. I am not going to tolerate this kind of inattention and rank disregard for my rights and the rights of my fellow Rockland County, New York citizens.

12. Murphy Must Be Replaced By Someone Who Can Handle The Job. It is patently obvious from the Murphy Letter In Error that Mr. Murphy cannot handle even the simplest task of lining up a FOIA request with the correct case number that FOIA Coordinator Ms. Chatman had previously assigned to it. Therefore, I must ask, why is the FAA even allowing Mr. Murphy to make these responses at all? Why is he in the job, even? What I herein demand is that someone competent and qualified, with a modicum of attention to detail, be assigned to this FOIA request and FOIA Appeal and all mine that follow, and that Mr. Murphy be replaced from that function, such that justice can be served.

13. I Reserve My Right To Further Respond And Appeal. I will further respond to and appeal the FAA’s apparent but thusfar-botched denial of my request for fee waiver and for expedited processing on one of the two (2) FOIAs, once the FAA clearly communicates to me in writing which of my two (2) FOIA requests - pictorial map images, or Kelley personnel file - those denials actually correspond to.

14. Almost 2,000 Rockland Citizens Are Waiting For “Understanding”. In the interim, the FAA’s argument that disclosure will not contribute to an understanding of the federal government by the interested public at large in a significant way - is utter nonsense. You should be advised that I have the strength of upwards of One Thousand, Eight Hundred Sixty-Eight (1,868) Rockland County, NY citizens and additional public officials behind me and in support of this FOIA Appeal. The citizens’ signatures are annexed hereto. Attached as collective Exhibit “D” are letters which I have thusfar received from concerned Rockland County, New York citizens like myself: including Thomas Sullivan, Andrew Li, Shirley Fried, Debra Fried, Richard G. Fried, Joyce Fried, and James Brady - along with copies of a digital on-line petition and several hard-copy petitions, containing no less than Five Hundred and Eleven (511) digital signatures, and an additional One Thousand, Three Hundred Fifty-Seven (1,357) hard-copy signatures, opposing the FAA’s Airspace Redesign as it would adversely affect Rockland County. The original signatures are being maintained here in Rockland County and are intended to be used as evidence in contemplation of litigation.

15. ALL Our Property Rights Are Affected. These citizens like myself are angry and incredulous that the FAA would seek to play games with our FOIA requests; deny me easily-available pictorial images of maps; and deny me free and expedited access to Mr. Kelley’s personnel file, the bulk of which is most certainly maintained digitally by the FAA and e-mailable. The majority of these petition signatories and other concerned Rockland County citizens have homes and/or businesses in the County. Their homes and livelihoods are threatened and have already been adversely affected by the FAA’s proposed Airspace Redesign; by Mr. Kelley’s statements and actions; by the FAA’s rank failure to accord us adequate notice, opportunity to be heard, and due process of law. It is nonsensical and insulting that the FAA would suggest in correspondence that I and my fellow Rockland County citizens do not have an interest in and need for further understanding of the FAA’s actions. In fact, right now the FAA has all of us scratching our heads as what in the world the FAA could possibly be thinking.

16. The Time-Urgency. The fact of the matter is, the FAA is trying to ram an ill-conceived flight path through Rockland County and issue a Record of Decision predicated upon it, within the next several days, to get it under the wire prior to the scheduled September 13, 2007 departure date of FAA Administrator Marion Blakey. We in Rockland County are incensed that the FAA has decided to play politics in this regard with our health, safety, and lives - and that the FAA has chosen to act in reckless and purposeful disregard for our procedural and legal rights. It is urgent that I receive immediate and thoughtful, non-botched responses to every FOIA request made on the topic of the Airspace Redesign - and given that our concerns extend to homeland security matters including avoiding the horror of any future-occurring (God forbid) aircraft disaster occurring over our heads and homes, this matter is not only urgent, but it is a matter of life as measured against its unacceptable alternative.

17. The FAA’s Time-Default.

5 U.S.C. §552(a)(6)(A) reads, in relevant part:

“Each agency, upon any request for records made under paragraph (1), (2),or (3) of this subsection, shall—

(i) determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination...” (emphasis added).

18. The FAA Flouted The August 14, 2007 Deadline. My July 25, 2007 FOIA was received by the FAA on July 25, 2007, as it was faxed and e-mailed to multiple parties within the FAA on that same July 25 date, including to two FAA-designated FOIA officers named Hankerson and Jemison who are (among others) also copied below on the “cc” list to this FOIA Appeal. The FAA’s determination on my July 25, 2007 FOIA was therefore due to me by Tuesday, August 14, 2007. Yet the FAA failed to timely, fully, substantively, and adequately reply to my July 25, 2007 FOIA request under the statute. For this failure alone I am entitled to attorney’s fees under the FOIA statute and I expect to seek those fees in the appropriate district court or district courts.

19. Why The FAA Is Withholding This Material. The FAA continues to stall, hinder, delay, and withhold the requested and needed material from the people at Rockland County, since the FAA is afraid of the public reaction that will inevitably ensue once that material is supplied and reviewed. We in Rockland County believe that that material will likely among other things show Mr. Kelley’s lack of qualifications and competence to make and implement the policy and other FAA decisions that will affect our health, safety, lives, environment, habitat, and ecosystem here in Rockland County - as affecting our homes, schools, houses of worship, elder care facilities, and other locations in the County. If the FAA thinks otherwise, then I challenge the FAA to prove to me, on paper, why. I want to know why a “recovering air traffic controller”, Kelley’s words, is making decisions adversely affecting the quality of my life, the lives of approximately 285,000 Rockland County citizens, and the lives of upwards of 30 million people affected by the Airspace Redesign.

20. The FAA’s Reputation. I will again note the outrage that this community in Rockland County, New York currently feels regarding the FAA’s oppressive, heavy-handed, and obstructive tactics. The FAA’s past history of concealing data and information from FOIA requesters is well-chronicled on the Internet, in the press, and otherwise - and now everyone in Rockland County is witnessing it first-hand as well. Words used by citizens to describe the FAA’s dilatory FOIA tactics include “conceal”, “lie”, “withhold”, “stall”, “hinder”, “delay”, “obstruct”, “avoid”, “misstate”, “misrepresent”, “conspire”, “obfuscate”, and “distort”. In the words of Don Henley, the FAA already has a nasty reputation - for showing fuzzy maps, waging wars of attrition, and suppressing data and information from the eyes of the public. Yet, we the public are lawfully entitled to that information the FAA seeks to wrongfully withhold from us. We are the ones whose safety, health, and quality of life is directly threatened by the FAA’s imminent further action on its ill-conceived proposed NY/NJ/PA Airspace Redesign.

21. Rockland County Has Already Been Damaged By The FAA. Moreover, Rockland County, New York has already greatly suffered as a result of the FAA’s manipulative and scheming tactics. The FAA first sought to close the comment period on the Airspace Redesign on May 11, 2007, a date by which virtually none of Rockland County’s residents were even made aware of the proposed NY/NJ/PA Airspace Redesign. The FAA made sure of that. Once complaints thereto were raised, the FAA then purposefully scheduled key deadlines to come and go during the summer of 2007, thus ensuring that people at schools and many others would be away on summer vacation and unavailable, and wouldn’t become apprised of the new flight path until it was too late to object. All those schools, by the way, are “cc’d” on these FOIA Appeal papers.

22. The FAA Is Engaging In A Pattern Of Unlawful Deprivation Of Our Rights. The FAA engaged in a perpetrated pattern of short-notice and in many cases no-notice, in its malicious quest to ensure that the voices of Rockland County, NY residents and those of others affected, would be wholly squelched. The FAA failed to give Rockland County adequate and meaningful notice and opportunity to be heard. The FAA deliberately deprived Rockland County residents of due process and seeks to effect a similarly-unconstitutional taking of our property rights thereby. By FAA Steve Kelley’s own admission, at time-code “00:54:40” of the Ramapo July 12 Video:

“We’ve had 120 meetings on this project, none in Rockland County”.

Kelley admitted on videotape that the FAA made mistakes in implementing public “notifications”. The videotaped record is already replete with instances of FAA admission of its own screw-ups. The Murphy Letter In Error is yet another one.

23. Closing. This County and its citizens will not tolerate, and will not accept, further evasive, pretextual, and thoughtlessly erroneous responses denying us information held by our federal government to which we are clearly and legally entitled. The foregoing is written without prejudice to any right or claim, all of which are hereby expressly reserved. Govern yourselves accordingly. Thousands of people now await and will be apprised of your agency’s response to this FOIA Appeal. And I reserve the right to add to that number. In fact, that number continues to grow with every successive mistake that the FAA makes.

Very truly yours,
John J. Tormey III, Esq.
---------------------------------------------------------------------------------

Law Office of John J. Tormey III, Esq.
John J. Tormey III, PLLC
217 East 86th Street, PMB 221
New York, NY 10028 USA
(212) 410-4142 (phone)
(845) 735-9691 (phone and voicemail)
(212) 410-2380 (fax)
e-mail: “jtormey@optonline.net”
“http://www.tormey.org”

RE: APPEAL OF RESPONSE BY THE FAA’S AND USDOT’S
“AIR TRAFFIC ORGANIZATION, EASTERN SERVICE CENTER”
TO MY (2ND) FOIA REQUEST #2007-006536(ES) DATED JULY 25, 2007

FOIA CONTROL NO. 2007-006536(ES)

UNDER THE FREEDOM OF INFORMATION ACT (“FOIA”)
5 UNITED STATES CODE SECTION 552 ET SEQ. (5 U.S.C. §552[a][6])

Tuesday, October 30, 2007

VIA FAX: 1-202-493-5032, E-MAIL: “7-AWA-ARC-FOIA@faa.gov”,
and U.S. MAIL
Douglas C. Taylor, Ph.D.
Manager, Planning and FOIA Management Staff
Assistant Administrator for Regions and Center Operations, ARC-1
Federal Aviation Administration
800 Independence Avenue, S.W.
Washington, DC 20591 USA

Re:
The People of Rockland County, New York adv. FAA
The FAA’s Current Plan To Direct Incremental Airplane Traffic Over Rockland County, New York

Dear Dr. Taylor:

This letter is in response to your September 17, 2007 letter to me (a copy of which is annexed hereto as Exhibit “A”), regarding the above-referenced FOIA request and Appeal:

1. The fee waiver should be granted, and I expect to seek judicial relief to compel same if you and your FAA colleagues continue to deny it to me.

2. The expedited processing should be granted, and I expect to seek judicial relief to compel same if you and your FAA colleagues continue to deny it to me.

3. Your September 17, 2007 letter is flat wrong. My September 4, 2007 FOIA appeal did appeal the fact that I was denied a fee waiver by Mr. Murphy’s arbitrary, capricious, wrongful and unlawful response. You clearly need to re-read my September 4, 2007 FOIA appeal. If you continue to refuse to do so, I know that a federal judge will not miss what you studiously and to date misread.

4. My September 4, 2007 FOIA appeal did in fact appeal the fact that I was denied expedited processing by Mr. Murphy’s arbitrary, capricious, wrongful and unlawful response. Again, you clearly need to re-read my September 4, 2007 FOIA appeal. If you continue to refuse to do so, I know that a federal judge will not miss what you studiously and to date misread.

5. Your “understanding” that “on August 22, 2007 Mr. Murphy sent [me] two letters” is just nonsensical and false. Perhaps Mr. Murphy lied to you, just like he lied to me in his reply on FOIA and Appeal #2007-006552(ES), among other occasions. The fact is, Mr. Murphy never sent me the “corrected copy” second letter that you claim he sent me. I never received such a response from him or his office on #2007-006536(ES). Rather, the first time I saw the so-called “corrected copy” second letter, is when I saw it enclosed in your September 17, 2007 letter that you sent me. (Exhibit B).

6. What obviously happened is that when Mr. Murphy, and perhaps you, realized just how false and awful Murphy’s “first” August 22, 2007 letter was, some one (or more) parties at the FAA then concocted and back-dated, to August 22, 2007, a letter allegedly signed by a “Pearlis E. Johnson”. I never previously received a copy of a letter signed by a “Pearlis E. Johnson”, and I have no idea who she is. Mr. Murphy’s, your, and the FAA’s “excuse” for what happened - your personal apology notwithstanding - reads like the schoolchild who tells his teacher in the morning that his dog ate his homework. Maybe Mr. Murphy should feed his dog better.

6. I wanted to believe that the presence of a Ph.D. like yourself on this matter might bring it to a smarter conclusion. But the only doctoring I am now seeing, is the doctoring that the FAA engages in when creating falsified and back-dated documents, and the FAA’s continued lies to me and all the 285,000-plus people of Rockland County, New York. That’s a disgrace and its disgusting.

7. Your September 17, 2007 letter indicates: “We [presumably, a ‘Royal We’ reference to you and the FAA] plan no further action on your appeal” [#2007-006536(ES)]. That’s perfect. What that means is that you and the FAA are withdrawing your further opposition to and refusal to fulfill my FOIA request, and withdrawing your further opposition to my FOIA appeal #2007-006536(ES). I am expecting documents from you and your heretofore-concealing colleagues like Mr. Murphy, Doctor Taylor - and I am expecting those documents for free, and immediately. You and Mr. Murphy can save the “My dog ate my homework” excuses for someone more forgiving and more naive. Stop the lies - NOW.

The foregoing is written without prejudice to any right or claim, all of which are hereby expressly reserved. Govern yourselves accordingly.

Very truly yours,
John J. Tormey III, Esq.
---------------------------------------------------------------------------------


Law Office of John J. Tormey III, Esq.
John J. Tormey III, PLLC
217 East 86th Street, PMB 221
New York, NY 10028 USA
(212) 410-4142 (phone)
(845) 735-9691 (phone and voicemail)
(212) 410-2380 (fax)
e-mail: “jtormey@optonline.net”
“http://www.tormey.org”

RE: APPEAL OF THE 11/28/2007-MAILED RESPONSE AND “PARTIAL NO RECORDS DETERMINATION” MADE IN ERROR BY THE FAA’S AND USDOT’S “ADMINISTRATIVE SERVICES GROUP” AND “REGIONAL ADMINISTRATOR, SOUTHERN REGION”, TO MY (2ND) FOIA REQUEST #2007-006536(ES) DATED JULY 25, 2007

FOIA CONTROL NO. 2007-006536(ES)

UNDER THE FREEDOM OF INFORMATION ACT (“FOIA”)
5 UNITED STATES CODE SECTION 552 ET SEQ. (5 U.S.C. §552[a][6])

Sunday, December 16, 2007

VIA U.S. MAIL, with delivery confirmation
Assistant Administrator for Regions and Center Operations, ARC-1
Federal Aviation Administration
800 Independence Avenue, S.W.
Washington, DC 20591 USA

VIA FAX: 1-202-493-5032, VIA E-MAIL: “7-AWA-ARC-FOIA@faa.gov”,
VIA E-MAIL:”duke.taylor@faa.gov”, and VIA U.S. MAIL
Douglas C. Taylor, Ph.D.
Manager, Planning and FOIA Management Staff
Assistant Administrator for Regions and Center Operations, ARC-1
Federal Aviation Administration
800 Independence Avenue, S.W.
Washington, DC 20591 USA

VIA E-MAIL: “melanie.yohe@faa.gov”, and VIA U.S. MAIL
Melanie Yohe, FOIA Management Specialist
Federal Aviation Administration
800 Independence Avenue, S.W.
Washington, DC 20591 USA

VIA E-MAIL: “doug.murphy@faa.gov”, and U.S. MAIL
Douglas R. Murphy - Regional Administrator, Southern Region
U.S. Department of Transportation, Federal Aviation Administration
Administrative Services Group
1701 Columbia Avenue
College Park, GA 30337 USA

VIA E-MAIL: “felix.enriquez@faa.gov”, and U.S. MAIL
Felix J. Enriquez - Director, ATO Eastern Service Center
U.S. Department of Transportation, Federal Aviation Administration
Administrative Services Group
1701 Columbia Avenue
College Park, GA 30337 USA

VIA U.S. MAIL
U.S. Department of Transportation, Federal Aviation Administration
Southern Regional Office
PO Box 20636
Atlanta, GA 30320 USA
(AJ02-ES MS)

Re:
The People of Rockland County, New York adv. FAA
The FAA’s Current Plan To Direct Incremental Airplane Traffic Over Rockland County, New York

Dear Doctor Taylor, Ms. Yohe, Mr. Murphy, Mr. Enriquez, and other FAA Personnel:

INTRODUCTION

1. This Appeal. This is an appeal of the FAA’s wrongful “partial no records response”/”partial no records determination” (hereafter, the “FAA Determination In Error”), made in belated FAA reply to my faxed, mailed and e-mailed July 25, 2007 FOIA request (#2007-006536[ES]). The underlying FOIA related to, inter alia, FAA employee Steve Kelley’s personnel and human resources file, and matters relating to the intended “NY/NJ/PA Airspace Redesign”. The FAA yet again and unbelievably continues to hide and conceal the truth. This will not be tolerated by me; by the thousands who will be copied on and will otherwise have access to these appeal papers and proceedings and who are regularly following such proceedings along; by the approximately 290,000 citizens and residents of Rockland County, New York directly and adversely affected by the ill-conceived intended FAA Redesign; or by the approximately 30,000,000 people in the Northeast generally, adversely affected by the Redesign. The FAA’s partial denial of my FOIA request is in violation of federal law, and is an insult to me and indeed to those same thousands and even millions of people. The wrong will be redressed - if not by you and your office, then by the federal courts. We will be vindicated. Those at the FAA charged with the responsibility of responding to FOIA requests and other citizen requests for information - the core function of open, transparent, and good government - will be corrected, as will be all of their manifold collective acts of malfeasance to date.

Count on it.

2. Procedure. On my behalf and as also may be in the interests of those (approximate) 290,000 residents of Rockland County, New York, I hereby request and demand administrative review of the FAA Determination In Error, with this writing. As indicated in the caption to this Appeal letter hereinabove, this is an appeal from the FAA Determination In Error regarding an underlying July 25, 2007 request made under the Freedom of Information Act (FOIA). The FOIA Control Number relating to this Appeal is No. 2007-006536[ES].

3. The Underlying FOIA. Enclosed as Exhibit “A” is a full and complete copy of the underlying July 25, 2007 FOIA request.

4. The FAA Reply In Error. Enclosed as Exhibit “B” is a full and complete copy of the documents which I received in the mail from your Southern Regional Office (collectively, “Reply Documents”) comprising the FAA Determination In Error. As you will see from the enclosed, the Reply Documents are now Bates-stamped “000000” through “000071”, in precisely the same order in which the FAA sequenced them right prior to forwarding them to me by mail.

5. The Postmarked Envelope. The FAA-mailed manila envelope (“Envelope”) bearing the metered postmark, is Bates-stamped “000000”.

6. The Cover Letter. The FAA’s two-paged cover letter (“Cover Letter”) is Bates-stamped “000001” through “000002”.

7. The Enclosures. The enclosures that the FAA furnished to me with the Cover Letter, are Bates-stamped “000003” through “000071”, copies as are enclosed for your reference.

8. This Appeal Is Timely. Even though the FAA deceitfully, purposefully, and artificially back-dated its Cover Letter to “Nov 15[,] 2007” (Bates “000001”), as you can see from the enclosed, the Envelope’s metered postmark reads “11/28/2007”, almost two weeks later - meaning that the letter was mailed to me no earlier than November 28, 2007. The envelope was thereafter received by me no earlier than December 4, 2007. In any event, this instant appeal (“Appeal”) is timely made.

9. The FAA’s Response Was Late. However, I again note that the FAA’s response to the underlying July 25, 2007 FOIA was itself unacceptably, insultingly, and egregiously late. No substantive response was received by me for over four (4) months after the underlying FOIA was served upon the FAA. Again, I reserve all my rights under FOIA with respect to this FAA default and late response, including without limitation my right to recover for all damages caused thereby, and my right to collect attorney’s fees under the FOIA statute for this and other FAA violations of federal law.

10. The SF-50’s Should Not Have Been Redacted. Regarding the Cover Letter’s Item “1E” (Bates “000001”), there is no reason given in the text of the Cover Letter - and, in fact, no reason at all - why the subject “SF-50’s” were, or should be, “redacted”. Demand is hereby made by this Appeal that unredacted SF-50’s be produced to me immediately. The FAA is not allowed under the FOIA statute to arbitrarily redact documents without proffering any valid and lawfully-recognized reasons therefor. The FAA’s Cover Letter cites no reason whatsoever why these documents were redacted. Additionally, the caselaw cited below makes it very clear why I am entitled to the information redacted in error therefrom by the FAA.

11. Stop Directing Me To The Website!. Regarding the Cover Letter’s Item “1Q” (Bates “000001”) whereby Mr. Murphy and the FAA yet again direct me to the “www.faa.gov” website, Mr. Murphy and the FAA have yet again failed to carefully read my underlying FOIA on Page 5 thereof - wherein I specifically said back on July 25, 2007 that the documents I am requesting therein are those not available on the FAA website! I already have those!

“NO RECORDS RESPONSES”

12. Why Kelley Stopped Being An ATC. Regarding the Cover Letter’s erroneously-punctuated Item “1[.]H”[sic] (Bates “000001”), it is disingenuous for the FAA to respond that it has no Documents reflecting reasons for or the circumstances of Mr. Kelley’s cessation or other discontinuation of his prior work as an air traffic controller (ATC). Mr. Kelley stated to all of Rockland County in July 2007, repeatedly and on videotape, that he was “a recovering air traffic controller”. (Please, e.g., see the videotape of the FAA meeting with Rockland County residents held in Ramapo, New York on July 12, 2007 posted on the Internet website “http://www.ramapo.org” at its “Live and Archived Video” section [“Ramapo July 12 Video”]; at time-code “00:19:45”).

It is totally unfathomable that Kelley’s FAA personnel and human resources file would neither reflect the reasons why he transitioned away from his former mode of employ, nor cite the transitioning or changing of work duties themselves. Simply put, this FAA “no records response” must be yet another lie by the FAA. Indeed, does the FAA otherwise now truly want to confess in writing to what would be obvious employer malfeasance, inherent in never inquiring as to why Kelley was divorced from his prior job as an air traffic controller? This is all something that the public clearly has a right to know - and the FAA’s concealment and continued dilatory tactics demonstrate the likelihood that where there is smoke, there is fire. In any event, the FAA is required by federal law to go back to the well, produce these documents to me, and stop repeatedly lying to me.

13. The Flight-Routing Instructions To Kelley. Regarding the Cover Letter’s Item “1L” (Bates “000001”), it is also horrifically disingenuous for the FAA to suggest that it has no Documents whereby Mr. Kelley was told by any persons or entities to effect the proposed Redesign so as to route inbound Newark Runway 22 arrivals over Rockland County, NY. Kelly did not decide to do this on his own - nor was this an inexplicable electronic belch of a software program. Of course Kelley was told to route the flights over Rockland, and he then sought to implement and roll-out the change he was instructed to make! These instructions are never left un-papered at the federal governmental level, and certainly not in the context of a project supposedly over nine (9) years in the making with a price-tag of upwards of fifty-three-and-a-half-million wasted U.S. dollars. In any event, the FAA is required by federal law to go back to the well, produce these documents to me, and stop repeatedly lying to me.

14. The Deadlines Given Kelley. Regarding the Cover Letter’s Item “1M” (Bates “000001”), it is also markedly disingenuous for the FAA to state that it has no Documents whereby Mr. Kelley was told to effect the airplane routings within a specified period of time. The FAA has been regularly communicating ever-shifting Redesign “deadlines” and start-dates to us in Rockland County - most of them turning out to be false, unsurprisingly - since early summer 2007. It is absolutely beyond credulity that Kelley would be making these dates up himself, in his head, arbitrarily, without accountability to any other FAA party. The dates are coming from another source, and the FAA is currently wrongfully and unlawfully withholding the Documents confirming same and the identity(ies) of their source or sources. This FAA lie will not stand, either. Again, the FAA is required by federal law to go back to the well, produce these documents to me, and stop repeatedly lying to me.

15. Kelley The “Recovering Air Traffic Controller”. Regarding the Cover Letter’s Item “1O” (Bates “000001”), it is also obviously disingenuous for the FAA to indicate that it has no Documents reflecting why Kelley referred to himself as a “recovering air traffic controller” - as per the appeal of the FAA “no records response” at Item 1H hereinabove. Of course such Documents exist. At the time of Kelley’s hiring in his current post, the FAA was required by law to inquire about his prior posts, including in the context of the employment and promotion applications called for by Item “1C” as also appealed hereinbelow. The FAA had to have asked for his reasons for leaving his prior employ. Additionally, Kelley put his mental state and fitness at issue by his “recovering ATC” comment, and thereby waived any privacy interest he might otherwise try to claim in what is now a matter of great public interest to each citizen of Rockland County and the Northeast generally. Again, the FAA is required by federal law to go back to the well, produce these documents to me, and stop repeatedly lying to me.

16. A Most Outrageous Lie. This is definitely the best FAA whopper so far. Regarding the Cover Letter’s Item “1R” (Bates “000001”), the FAA is clearly lying when it says that “[t]here are no records” for this Item “1R”. By the FAA’s own written admission, in the very next paragraph of the same Cover Letter (Bates “000001”), the FAA admits that it is “withholding” (inter alia) such same very 1R Documents “from disclosure under exemption 6 of the FOIA”!!! This is outrageous and hysterical! Within the space of two paragraphs, the FAA tells me in writing that it is purposefully withholding records that it just said don’t exist! Too bad for the FAA, that the FAA is too incompetent in its responses to keep its own story straight! In any event, I demand a full and immediate investigation of Mr. Murphy’s obvious written lie to me in the Cover Letter regarding Item “1R”. There is obviously no way that the same documents could be both non-existing and also withheld at the same time - unless perhaps Murphy somehow just secured a patent for invisible ink. How ludicrous!

17. Instruction To Avoid Parkland. Regarding the Cover Letter’s Item “1S” (Bates “000001”), it is also disingenuous for the FAA to suggest that it has no Documents reflecting any decision to avoid placing the flight paths over parkland. Steve Kelley specifically told me to my face at the July 30, 2007 meeting with the FAA in Hillburn, New York, that the FAA circumvented Harriman State Park since the FAA believed it was federal parkland - at which point I corrected him and informed him of the full name of the park and therefore its actual status. Kelley already admitted to me that the FAA purposefully decided to avoid Harriman State Park with the flight path, albeit for an incorrect reason. This FAA decision was documented, just like all FAA decisions are required to be documented by federal law. The FAA is once again lying to me and the people of Rockland County when it indicates that no such Documents exist. This FAA denial is therefore appealed, also. Again, the FAA is required by federal law to go back to the well, produce these documents to me, and stop repeatedly lying to me.

18. Instruction To Avoid The Ramapo Tribe. Regarding the Cover Letter’s Item “1T” (Bates “000001”), it is also disingenuous for the FAA to assert that it has no Documents reflecting any decision to avoid placing the flight paths over the habitat of the Ramapo Indians. The FAA’s notification documents on the Draft Environmental Impact Study (DEIS) currently posted on “www.faa.gov”, clearly show the FAA’s awareness of the location of the Ramapo Indians - in fact, certain of the FAA’s documents “cc” the tribal leaders of that same tribe. Again, the FAA is required by federal law to go back to the well, produce these documents to me, and stop repeatedly lying to me.

19. The Nonsense Of FAA-Claimed Undocumented Reportings. Regarding the Cover Letter’s Item “1U (Bates “000001”), it is absolutely nonsensical for the FAA to suggest that it has no Documents reflecting the individuals and entities to whom Mr. Kelley reports! Reportings within governmental agencies are always documented! This is truly an unbelievable first - a federal government agency purporting to have no Org Chart! Naturally this “no records” denial is being appealed herewith as well. Again, the FAA is required by federal law to go back to the well, produce these documents to me, and stop repeatedly lying to me.

20. Another Most Outrageous Lie. Yet another FAA whopper follows. Also regarding the Cover Letter’s same Item “1U” (Bates “000001”), the FAA is clearly lying when it says that “[t]here are no records” for this Item “1U”. By the FAA’s own written admission, in the very next paragraph of the Cover Letter (Bates “000001”), the FAA admits that it is “withholding” (inter alia) the self-same 1U Documents “from disclosure under exemption 6 of the FOIA”!!! Once again, as with “1R”, this is outrageous and hysterical! Within the space of two paragraphs, the FAA tells me in writing that it is purposefully withholding records that it just said didn’t exist! Too bad for the FAA, again, that the FAA is too incompetent in its responses to keep its own story straight! In any event, once again I demand a full and immediate investigation of Mr. Murphy’s obvious written lie to me in the Cover Letter regarding Item “1U” as well. A man who writes a letter to me lying on its face like that, should not be allowed to continue to reply to me or reply to other FOIA requests.

21. The Decision To Short-Sheet Rockland. Regarding the Cover Letter’s Item “1W” (Bates “000001”), it is also disingenuous for the FAA to suggest that it has no Documents reflecting any dialogue involving Kelley in which it was decided not to hold hearings in Rockland County, New York. By Kelley’s own admission, at time-code “00:54:40” of the Ramapo July 12 Video:

“We’ve had 120 meetings on this project, none in Rockland County”.

This was clearly a purposeful decision on the part of Kelley and the FAA. Of course it was a documented decision. The FAA is once again lying to Rockland County and America, and wrongfully and unlawfully concealing the truth. Appeal is hereby taken from this FAA FOIA lie as well, just as appeal is hereby taken from all other FAA FOIA lies in the Cover Letter. Again, the FAA is required by federal law to go back to the well, produce these documents to me, and stop repeatedly lying to me.

CLAIMED “EXEMPTION 6” FAA CONCEALMENTS

22. Concealed Job Applications. Regarding the Cover Letter’s Item “1C” (Bates “000001”), whereby the FAA concludes that it is purposefully withholding Documents reflecting Kelley’s past applications for employment or promotion “under Exemption 6 of the FOIA”, it is well-settled that civilian federal employees generally have no expectation of privacy regarding the parts of their successful employment applications that show their qualifications for their positions. See Barvick v. Cisneros, 941 F. Supp. 1015, 1020 n.4 (D. Kan. 1996) (noting that the subject agency in the case had “released information pertaining to the successful candidates’ educational and professional qualifications, including letters of commendation and awards, as well as their prior work history, including federal positions, grades, salaries, and duty stations”).

Additionally, the fact of the matter is that the public - and Rockland County citizens in particular - are fully-entitled to know what Kelley’s qualifications for any applied-for job, are, or may have been. The public is entitled to know, for example, if Kelley lied or misstated any facts on his application or applications so as to secure the job or jobs. One purpose that the FOIA was designed for was to “check against corruption and to hold the governors accountable to the governed”. Multnomah County Med. Soc’y v. Scott, 825 F.2d 1410, 1415 (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 [1978]).

Kelley has no privacy interest in the public posts and responsibilities he sought or is seeking, and the public interest of 290,000 Rockland citizens and 30,000,000 people affected by the Airspace Redesign far outweigh any conceivable privacy interest Kelley could ever try to claim in these application documents. The fact of the matter is that Kelley’s possible claimed privacy interest in such material or information does not even rise to a de minimis level. See, e.g., National Association of Home Builders v. Norton, 309 F.3d 26 (D.C. Cir. 2002).

Disclosure to me and therefore those with whom I communicate, of this FOIA-requested material concerning “Project Manager” Steve Kelley, one of the lead FAA figures in the creation and implementation of the intended Airspace Redesign, would clearly serve FOIA’s core purpose of contributing significantly to public understanding of the government’s operations and activities. See United States Department of Defense v. FLRA, 510 U.S. 487 (1994). As already amply briefed to your office previously, I am sharing all of FAA’s FOIA responses with an e-mail and contact list of persons numbering in the four-figures, over a thousand people, and the replies are also regularly being posted on “http://tinyurl.com/3yd9em” and receiving a comparable number of web-hits.

Exemption 6 requires a balancing of invasion of personal privacy, on the one hand; and public interest in disclosure, on the other hand. Department of Air Force v. Rose, 425 U.S. 352 (1976); Trentadue v. President’s Council on Integrity & Efficiency, 2:03-CV-339, slip op. at 4 (D. Utah Apr. 26, 2004) (stating that the subject agency made no showing of privacy interest, so names of government employees should be released). To construe Exemption 6 of the FOIA otherwise, as proposed in the Cover Letter and in the FAA Determination In Error, would create a vastly-overbroad exception which would swallow whole the general rule of mandatory disclosure required by 5 U.S.C. §552. This balance, as well as all those balances which follow in the analyses below, decidedly tip in my favor and in favor of the many citizens in Rockland County and elsewhere following these communications and concerned about their outcome. The subject documents must be produced by the FAA now and immediately.

23. The FAA Again Ignores The Statutory Text. Moreover, I note that studiously omitted from the FAA’s Cover Letter is the text of the actual legal standard for withholding documents under Exemption 6 of the FOIA, otherwise known as 5 U.S.C. Section 552(b)(6):

“...[A] clearly unwarranted invasion of personal privacy. [Emphasis supplied].

Of course the FAA is well-practiced in the “art” of ignoring the actual text of the law when it does not serve the FAA’s purposes.

Any “invasion of privacy” cited or suggested by the FAA’s Cover Letter, is neither “clear”, nor “unwarranted”. The term “unwarranted” requires a balancing of privacy interest against public interest in disclosure, and the “clearly unwarranted” language of Exemption 6 weights the scales in favor of disclosure. See Ripskis v. HUD, 746 F.2d 1,3 (D.C. Cir. 1984).

Rather, the Cover Letter would have me and Rockland County citizens believe that all of the withheld Documents are being withheld, simply because of Mr. Murphy’s ipse dixit statement that they are somehow entitled to be withheld. Yet neither the FAA nor Mr. Murphy have any credibility with me or the people of Rockland County, for the manifold reasons already briefed to you in prior FOIA correspondence and appeals. And Mr. Murphy is as far from an authoritative source on relevant federal law as I could ever imagine. All the FAA and Murphy have done to date is lie, conceal, and otherwise botch their FOIA responses to me.

Moreover, all of the material that my underlying FOIA herein seeks regarding Steve Kelley’s personnel files and the Redesign, is clearly the product of totally-warranted concern and totally-warranted FOIA requests made in the public interest. We in Rockland County are entitled to know who this man Steve Kelley really is; why he is in the position he is in; and whether or not he is indeed suitable for the position he is in. The FOIA was designed for was to “check against corruption and to hold the governors accountable to the governed”. Multnomah County Med. Soc’y v. Scott, 825 F.2d 1410, 1415 (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 [1978]).

We in Rockland County are totally within our rights to not simply take the FAA’s “word for it” - particularly given the FAA’s well-demonstrated track record of recidivist mendacious communications to me and the people of Rockland County. Moreover, we have reason to believe that FAA’s Steve Kelley is not so suitable for such position he is in. He and others at the FAA lied to the Rockland County public about the start date of the Redesign. Kelley lied to my face when citing Harriman State Park as a federal park. And Kelley lied to my face when stating in public in front of a thousand people at the July 30 meeting in Hillburn, that he did not produce two pictorial maps to me as compelled by FOIA. We in Rockland County believe that he and others at the FAA have regularly and persistently lied to us about other aspects of the Redesign.

Finally, the FAA can articulate no significant privacy interest in the within FOIA-requested material that would constitute the statutorily-required “clear” and “unwarranted” invasion of privacy. See Holland v. CIA, No. 91-1233, 1992 WL 233820 at *16 (D.D.C. Aug. 31, 1992) (stating that the FOIA-requested information must be disclosed when there is no significant privacy interest, even if public interest in the matter is also de minimis).

24. The FAA Made No Segregation As Required By Statute. Also studiously omitted from the FAA’s Cover Letter is key remaining text of 5 U.S.C. Section 552(b)(6), which tells the FAA what specifically it must do in order to try to claim protection from disclosure under Exemption 6 of the FOIA:

“Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted shall be indicated at the place in the record where such deletion is made”.

Of course, the FAA failed to do any of this in response to my FOIA request.

Without prejudice to the remaining passages of this Appeal, and to my and others’ rights in the courts under FOIA and otherwise, I hereby request and demand that all such “reasonably segregable portions” be immediately provided to me, on each page clearly indicating “the amount of the information deleted”.

Federal law clearly compels this disclosure to me and, by transitivity, the people of Rockland County, New York. See, e.g., Kimberlin v. Dept. of Justice, 139 F.3d at 944, 949-50 (D.C. Cir. 1998) (declining to affirm withholding of entire file pertaining to an Office of Professional Responsibility investigation of an Assistant U.S. Attorney without “more specification of the types of material in the file” and specific findings on segregability by the district court); Patterson v. IRS, 56 F.3d 832, 838-40 (7th Cir. 1995) (refusing to permit agency to withhold entire document under Exemption 6 if only “portions” are exempt); Hronek v. DEA, 16 F. Supp. 2d 1260, 1270, 1278 (D. Or. 1998) (“Blanket explanations... do not meet FOIA’s [segregability] requirements and do not permit the court to make the necessary findings... The government fails to indicate why the privacy interests at stake could not be protected simply by redacting particular identifying information”);

See also Trans-Pac. Policing Agreement v. United States Customs Serv., 177 F.3d 1022, 1026-29 (D.C. Cir. 1999) (imposing upon district courts “an affirmative duty to consider the segregability issue sua sponte” even if not raised by the requester, in the context of Exemption 4); Krikorian v. Dept. of State, 984 F.2d 461, 466-67 (D.C. Cir. 1993) (“‘The “segregability” requirement applies to all documents and all exemptions in the FOIA’” (quoting Ctr. for Auto Safety v. EPA, 731 F.2d 16, 21 (D.C. Cir. 1984), in the context of Exemptions 1, 3, and 5); Judicial Watch, Inc. v. United States Dept. of Commerce, 83 F. Supp. 2d 105, 109 (D.D.C. 1999), subseq. hist. omitted, (“[D]istrict courts are required to consider segregability issues even when the parties have not specifically raised such claims”); FOIA Update, Vol. XIV, No. 3, at 11-12 (“OIP Guidance: The ‘Reasonable Segregation’ Obligation”).

25. The FAA Even Seeks To Conceal Kelley’s JOB Duties!. Regarding the Cover Letter’s Item “1F” (Bates “000001”), whereby the FAA - incredibly! - indicates that it is purposefully withholding Documents reflecting Kelley’s assigned job duties and actual job duties, the fact of the matter is that the public, and Rockland County citizens in particular, are fully entitled to know what Kelley’s job duties are or may have been. See Barvick v. Cisneros, 941 F. Supp. 1015, 1020 n.4 (D. Kan. 1996) (wherein the subject agency had “released information pertaining to the successful candidates’ educational and professional qualifications, including letters of commendation and awards, as well as their prior work history, including federal positions, grades, salaries, and duty stations”). Kelley could not possibly have any privacy interest in the public responsibilities he has been assigned as a federal governmental employee!

The law is clear that civilian federal employees have no expectation of privacy regarding their names, titles, grades, salaries, and duty stations as employees. See 5 C.F.R. § 293.311 (2004) (OPM regulation specifying that certain information contained in federal employee personnel files is available to public); FLRA v. United States Department of Commerce, 962 F.2d 1055, 1059-61 (D.C. Cir. 1992) (noting that performance awards “have traditionally been subject to disclosure”); Core v. United States Postal Service, 730 F.2d 946, 948 (4th Cir. 1984) (finding no substantial invasion of privacy in information identifying successful federal job applicants); Nat’l W. Life Ins. v. United States, 512 F. Supp. 454, 461 (N.D. Tex. 1980) (discerning no expectation of privacy in names and duty stations of Postal Service employees).

Moreover, these job duties, and Kelley’s handling or mishandling of them, have potentially-catastrophic implications for the health and safety of the 290,000 residents of Rockland County and the 30,000,000 people adversely affected by the Airspace Redesign. Kelley and the Redesign seek to put up to 600 fuel-laden jumbo jets less than 5,000 feet over our heads every day, with fly-overs every 2.5 minutes, at decibel level peaks or L-maxes of between 40-80dB. Kelley and the Redesign seek to destroy our health, safety, security, and ecosystem. Our public interest in Kelley’s job duties and whether or not Kelley is fulfilling or tracking them, far outweighs any conceivable privacy interest Kelley or the FAA might in vain try to prop up against this valid and important request.

Kelley’s possible claimed privacy interest in such material or information does not even rise to a de minimis level. See, e.g., National Association of Home Builders v. Norton, 309 F.3d 26 (D.C. Cir. 2002). Disclosure of this FOIA-requested material concerning Airspace Redesign “Project Manager” Steve Kelley, one of the lead FAA figures in the creation and implementation of the intended Airspace Redesign, would clearly serve FOIA’s core purpose of contributing significantly to public understanding of the government’s operations and activities. See United States Department of Defense v. FLRA, 510 U.S. 487 (1994).

Exemption 6 requires a balancing of invasion of personal privacy on the one hand, and public interest in disclosure on the other hand. Department of Air Force v. Rose, 425 U.S. 352 (1976). To construe Exemption 6 of the FOIA otherwise, as proposed in the Cover Letter and the FAA Determination In Error, would create a vastly-overbroad exception which would swallow whole the general rule of mandatory disclosure required by 5 U.S.C. §552. No court would ever support the FAA in withholding this material under FOIA. These Documents must be produced as well.

26. Kelley’s Suitability Vel Non For The Job. Regarding the Cover Letter’s Item “1G” (Bates “000001”), whereby the FAA indicates that it is purposefully withholding Documents reflecting Kelley’s suitability vel non for any job duties, the fact of the matter is that the public, and Rockland County citizens on particular, are also fully entitled to know what Kelley’s job duties are or may have been, for principally the same reasons as cited in the context of “1F” hereinabove. See Barvick v. Cisneros, 941 F. Supp. 1015, 1020 n.4 (D. Kan. 1996) (wherein the agency had “released information pertaining to the successful candidates’ educational and professional qualifications, including letters of commendation and awards, as well as their prior work history, including federal positions, grades, salaries, and duty stations”).

Kelley has no privacy interest in the very public question of whether he is a suitable choice of public official to affect the health and lives of the millions of people affected by the intended Airspace Redesign, as cited in the appeal of the FAA “no records response” to Item “1F” immediately hereinabove. See, e.g., FLRA v. United States Department of Commerce, 962 F.2d 1055, 1059-61 (D.C. Cir. 1992) (noting that performance awards “have traditionally been subject to disclosure”).

And again, Kelley’s possible claimed privacy interest in such material or information does not even rise to a de minimis level. See, e.g., National Association of Home Builders v. Norton, 309 F.3d 26 (D.C. Cir. 2002). Disclosure of this FOIA-requested material concerning “Project Manager” Steve Kelley, one of the lead FAA figures in the creation and implementation of the intended Airspace Redesign, would clearly serve FOIA’s core purpose of contributing significantly to public understanding of the government’s operations and activities. See United States Department of Defense v. FLRA, 510 U.S. 487 (1994).

Exemption 6 requires a balancing of invasion of personal privacy on the one hand, and public interest in disclosure on the other hand. Department of Air Force v. Rose, 425 U.S. 352 (1976). To construe Exemption 6 of the FOIA otherwise, as proposed in the Cover Letter and the FAA Determination In Error, would create a vastly-overbroad exception which would swallow whole the general rule of mandatory disclosure required by 5 U.S.C. §552. No court would ever support the FAA in withholding this material under FOIA. These Documents must be produced as well.

27. The FAA Admits That A Kelley Disciplinary File Exists. What follows is probably the most dramatic development to arise out of my FOIA correspondence with the FAA to date. Regarding the Cover Letter’s Item “1I” (Bates “000001”), whereby the FAA indicates that it is purposefully withholding actually-existing Documents reflecting past, present, or pending disciplinary action against Kelley - it is first stark and obvious that such Documents do in fact exist - since if otherwise, the FAA would have instead made a “no records response” to Item “1I”.

So now, the FAA has actually admitted, in writing, to me, that its employee Steve Kelley has been subjected to some “past, present, or pending censure, suspension, or other disciplinary action or analogue thereof” - and has in the same breath left me, all of the Rockland County citizens, and all of the American public to guess at what those disciplinary proceedings might or could have been! Let me first point out that the FAA is doing no favors to Kelley by responding in this fashion, and maybe perhaps the FAA is seeking to cast Kelley adrift given his incompetent handling and participation in the US$53,000,000+ over-spending on the Redesign. In any event, thank you, FAA, for the admission against FAA interest. Thank you, FAA, for admitting that such disciplinary-related Documents regarding Kelley do in fact exist.

But let me emphatically assure you that it is in the public interest to know the full details of any and all censure, suspension, or other disciplinary action taken against Steve Kelley - and that neither you and the FAA nor Kelley have any lawful basis for now concealing these Documents and this information from the innocent and heretofore-unsuspecting public. Your FAA seeks to allow Kelley, the self-admitted “federal bureaucrat” and “recovering air traffic controller”, to participate in a scheme to put up to 600 jet-fuel-laden jumbo jets over my head and home and the heads and homes of up to 290,000 Rockland County NY residents, and approximately 30,000,000 residents of the Northeast generally. And the FAA is now telling me that the past disciplinary actions taken against a public governmental employee and official like Kelley, are private to him and none of our business? That’s utter nonsense and a complete misreading and misapplication and over-application of 5 U.S.C. Section 552(b)(6).

Disclosure of this FOIA-requested material concerning “Project Manager” Steve Kelley, one of the leading FAA figures in the creation and implementation of the intended Airspace Redesign, would clearly serve FOIA’s core purpose of contributing significantly to public understanding of the government’s operations and activities. See United States Department of Defense v. FLRA, 510 U.S. 487 (1994). Exemption 6 requires a balancing of invasion of personal privacy on the one hand, and public interest in disclosure on the other hand. Department of Air Force v. Rose, 425 U.S. 352 (1976). To construe Exemption 6 of the FOIA otherwise, as proposed in the Cover Letter and the FAA Determination In Error, would create a vastly-overbroad exception which would swallow whole the general rule of mandatory disclosure required by 5 U.S.C. §552.

These disciplinary documents may relate to Kelley’s proclivity towards veracity vel non; his corruptibility vel non; his sensitivity to environmental justice concerns; his consciousness of environmental standards and laws; his actions taken in self-interest or as a result of conflicts-of-interest; his regard or disregard in the past of those of us on the ground; any acts of insubordination if occurring; the clarity vel non of his own discretion and judgment; or any of a host of other possible disciplinary and workplace issues that could well have already infected the totality of the Redesign for which Kelley was “Project Manager”.

The FAA has now opened the door. The FAA has now admitted a disciplinary file on Kelley exists. In any event, I and my Rockland County neighbors are entitled to see all documents relating to any FAA-related discipline of Steve Kelley. The FOIA was designed to “check against corruption and to hold the governors accountable to the governed”. Multnomah County Med. Soc’y v. Scott, 825 F.2d 1410, 1415 (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 [1978]). We are entitled to know how accountable or corruptible Kelley is or was, and thereby, the degree to which same may have affected the Redesign and thus our lives.

28. The FAA Is Flouting Binding Federal Precedent. Moreover, the FAA’s response on the particular question of Steve Kelley’s disciplinary file, is in violation of the supreme law of the land. In Department of Air Force v. Rose, 425 U.S. 352 (1976), the United States Supreme Court found that the lower court correctly determined that case summaries describing disciplinary action may be subject to FOIA disclosure. So, too, must Steve Kelley’s disciplinary file - now admitted by the FAA to exist - now be produced in response to the underlying FOIA in the instant matter - pursuant to the Rose decision. If you purport not to agree, I know the names of nine (9) people who will.

29. The FAA Admits To Proceedings Or Other Action Taken Against Kelley. Regarding the Cover Letter’s Item “1J” (Bates “000001”), whereby the FAA indicates that it is also purposefully withholding Documents reflecting past, present, or pending legal or administrative proceedings or other action against Kelley - it is again first stark and obvious that such Documents exist, since if otherwise, the FAA would have instead made a “no records response” to Item “1J”. So now, the FAA has also admitted that its employee Steve Kelley has been subjected to some “past, present, or pending litigation, administrative proceeding, or other claim or proceeding initiated against [him] individually, or against him and others”.

Thank you again, FAA, for the admission against FAA interest. But let me emphatically and once again assert that it is clearly in the public interest to know the full details of any and all legal, administrative, and/or similar action taken against Steve Kelley. Again, your FAA seeks to allow this self-admitted “federal bureaucrat” and “recovering air traffic controller” to participate in a scheme to put up to 600 jet-fuel-laden jumbo jets over my head and home and the heads and homes of up to 290,000 Rockland County NY residents, and approximately 30,000,000 residents of the Northeast generally. And the FAA is telling me that the past proceedings and/or claims initiated against a public governmental employee and official like Kelley, are private to him and none of our business? That’s once again utter nonsense and a complete misreading and misapplication and over-application of 5 U.S.C. Section 552(b)(6).

Kelley’s possible claimed privacy interest in such material or information relating to proceedings against him does not even rise to a de minimis level - See, e.g., National Association of Home Builders v. Norton, 309 F.3d 26 (D.C. Cir. 2002) - particularly because much if not all of the so-requested information may already be a matter of public record. See Avondale Indus. v. NLRB, 90 F.3d 955, 961 (5th Cir. 1996) (finding names and addresses of voters were already disclosed in a voluminous public record); Billington v. United States Dept. of Justice, 245 F. Supp. 2d 79, 85-86 (D.D.C. 2003) (finding that information about two persons contained in reporters notes given to State Department was not protected by Exemption 6, because these persons “knew they were speaking to a reporter on the record and therefore could not expect to keep private the substance of the interview”).

See also Blanton v. United States Dept. of Justice, No. 93-2398, 1994 U.S. Dist. LEXIS 21444, at *11-12 (W.D. Tenn. July 14, 1994) (“The fact of [requester former counsel’s] representation is a matter of public record... Whether an individual possesses a valid license to practice law is also a matter of public record and cannot be protected by any privacy interest”); Nat’l W. Life Ins., 512 F. Supp. at 461 (noting that names and duty stations of most federal employees are routinely published and available through Government Printing Office).

Disclosure of this FOIA-requested material concerning “Project Manager” Steve Kelley, one of the leading FAA figures in the creation and implementation of the intended Airspace Redesign, would clearly serve FOIA’s core purpose of contributing significantly to public understanding of the government’s operations and activities. See United States Department of Defense v. FLRA, 510 U.S. 487 (1994).

These proceedings against or involving Kelley, now acknowledged by the FAA to exist, may relate to Kelley’s proclivity towards veracity vel non; his corruptibility vel non; his sensitivity to environmental justice concerns; his consciousness of environmental standards and laws; his actions taken in self-interest or as a result of conflicts-of-interest; his regard or disregard in the past of those of us on the ground; any acts of insubordination if occurring; the clarity vel non of his own discretion and judgment; or any of a host of other possible issues that could well have already infected the totality of the Redesign for which Kelley was “Project Manager”. Disclosure of this material is compelled by FOIA.

Exemption 6 requires a balancing of invasion of personal privacy on the one hand, and public interest in disclosure on the other hand. Department of Air Force v. Rose, 425 U.S. 352 (1976). To construe Exemption 6 of the FOIA otherwise, as proposed in the Cover Letter and the FAA Determination In Error, would create a vastly-overbroad exception which would swallow whole the general rule of mandatory disclosure required by 5 U.S.C. §552. The FAA must produce these “Kelley proceedings” Documents to me as well.

30. The FAA Admits That a Kelley Conflicts-Of-Interest File Exists. Regarding the Cover Letter’s Item “1K” (Bates “000001”), whereby the FAA indicates that it is purposefully withholding Documents reflecting Kelley’s apparent, actual, or claimed conflicts-of-interest - it is once again first stark and obvious that such Documents do indeed exist, since if otherwise, the FAA would have instead made a “no records response” to Item “1K”. So now, the FAA has also admitted that there are some Documents regarding Steve Kelley as linked to actual, apparent or claimed conflicts-of-interests.

Thank you, FAA, for yet another admission against FAA interest. But let me again emphatically state that it is clearly in the public interest to know all the full details of any and all conflicts-of-interest regarding Steve Kelley - whether they be actual, apparent, or even simply claimed.

Again, your FAA seeks to allow this self-admitted “federal bureaucrat” and “recovering air traffic controller” to participate in a scheme to put up to 600 jet-fuel-laden jumbo jets over my head and home and the heads and homes of up to 290,000 Rockland County NY residents, and approximately 30,000,000 residents of the Northeast generally. And the FAA is trying to tell me that conflicts-of-interests relating to Kelley, potentially themselves explaining why he ended up routing the planes over Rockland County, New York, are private to him and none of our business? That’s yet again utter nonsense and a complete misreading and misapplication and over-application of 5 U.S.C. Section 552(b)(6).

Disclosure of this FOIA-requested material concerning “Project Manager” Steve Kelley, one of the leading FAA figures in the creation and implementation of the intended Airspace Redesign, would clearly serve FOIA’s core purpose of contributing significantly to public understanding of the government’s operations and activities. See United States Department of Defense v. FLRA, 510 U.S. 487 (1994).

Exemption 6 requires a balancing of invasion of personal privacy on the one hand, and public interest in disclosure on the other hand. Department of Air Force v. Rose, 425 U.S. 352 (1976). To construe Exemption 6 of the FOIA otherwise, as proposed in the Cover Letter and the FAA Determination In Error, would create a vastly-overbroad exception which would swallow whole the general rule of mandatory disclosure required by 5 U.S.C. §552. The balance again tips in my favor and Rockland County’s favor. I am entitled to each and every Document that links Kelley to any conflict-of-interest, claim thereof, or phenomenon or material similar thereto. The issues contained in any of those documents could well have already infected the entire Redesign.

31. Kelley Waived Privacy Interests In His Location. Regarding the Cover Letter’s Item “1P” (Bates “000001”), whereby the FAA indicates that it is purposefully withholding Documents reflecting where Kelley and his family may live or own property - first, I understand that Kelley already admitted in public where he lives, in at least one public meeting, and therefore Kelley has waived any privacy interest he might otherwise have in his home’s location. In any event, the public is fully entitled to know whether or not the paths intended to be utilized in the Airspace Redesign, purposefully circumvent Kelley’s residence or property or that of anyone close to him.

Additionally, Kelley’s residence and property are already presumably available through public real estate records, and some courts have observed that disclosure of some information might involve no invasion of privacy because, fundamentally, the information is of such a nature that no expectation of privacy therein exists. See, e.g., City of Chicago v. United States Department of Treasury, 287 F.3d 628, 636 (7th Cir. 2002), subseq. exceptional vacatur history omitted (declaring that “[f]irearms manufacturers, dealers and purchasers are on notice that records of their transactions are not confidential”); see also Alliance for the Wild Rockies v. Department of the Interior, 52 F. Supp. 2d 32, 37 (D.D.C. 1999).

Assuming that Kelley owns his residence, he knew or was on notice that the purchase transaction became public record. See Avondale Indus. v. NLRB, 90 F.3d 955, 961 (5th Cir. 1996) (finding names and addresses of voters were already disclosed in a voluminous public record); Billington v. United States Dept. of Justice, 245 F. Supp. 2d 79, 85-86 (D.D.C. 2003) (finding that information about two persons contained in reporters notes given to State Department was not protected by Exemption 6, because these persons “knew they were speaking to a reporter on the record and therefore could not expect to keep private the substance of the interview”).

See also Blanton v. United States Dept. of Justice, No. 93-2398, 1994 U.S. Dist. LEXIS 21444, at *11-12 (W.D. Tenn. July 14, 1994) (“The fact of [requester former counsel’s] representation is a matter of public record... Whether an individual possesses a valid license to practice law is also a matter of public record and cannot be protected by any privacy interest”); Nat’l W. Life Ins., 512 F. Supp. at 461 (noting that names and duty stations of most federal employees are routinely published and available through Government Printing Office).

Kelley’s residence and property are also likely discernible through websites such as “zoominfo” and “zabasearch”, and through any modicum of investigative effort. Kelley has no protectible privacy interest in his location, certainly not as relative to the significant question in the public interest of whether he participated in routing jet paths away from his own location and property and that of his family. Disclosure of this FOIA-requested material concerning “Project Manager” Steve Kelley, one of the lead FAA figures in the creation and implementation of the intended Airspace Redesign, would clearly serve FOIA’s core purpose of contributing significantly to public understanding of the government’s operations and activities. See United States Department of Defense v. FLRA, 510 U.S. 487 (1994).

Exemption 6 requires a balancing of invasion of personal privacy on the one hand, and public interest in disclosure on the other hand. Department of Air Force v. Rose, 425 U.S. 352 (1976). To construe Exemption 6 of the FOIA otherwise, as proposed in the Cover Letter and the FAA Determination In Error, would create a vastly-overbroad exception which would swallow whole the general rule of mandatory disclosure required by 5 U.S.C. §552. These FOIA-requested documents must be produced as well, even if they result in a conclusion that Kelley’s Redesign efforts were tantamount to self-dealing and preserving the value of his own property or that of his family. Again, one purpose that the FOIA was designed for was to “check against corruption and to hold the governors accountable to the governed”. Multnomah County Med. Soc’y v. Scott, 825 F.2d 1410, 1415 (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 [1978]).

32. Kelley’s Contributions Should Be Public Record And Not Withheld. Regarding the Cover Letter’s Item “1R” (Bates “000001”), whereby the FAA indicates that it is purposefully withholding Documents reflecting Kelley’s past contributions to environmental causes and political candidates - I am entitled to receive copies of all these Documents for reasons identical and similar to those reasons set forth relative to Item 1K hereinabove. Moreover, political and charitable contributions should be a matter of public record - unless Kelley broke the law when making them. You and the FAA are going to want to re-think this answer for your employee’s sake alone.

Kelley’s possible claimed privacy interest in such material or information does not even rise to a de minimis level - See, e.g., National Association of Home Builders v. Norton, 309 F.3d 26 (D.C. Cir. 2002) - particularly because much if not all of the so-requested information may already be a matter of public record. See Avondale, 90 F.3d at 961 (finding names and addresses of voters were already disclosed in a voluminous public record); Billington, 245 F. Supp. 2d at 85-86 (finding that information about two persons contained in reporters notes given to State Department was not protected by Exemption 6, because these persons “knew they were speaking to a reporter on the record and therefore could not expect to keep private the substance of the interview”).

See also Blanton, No. 93-2398, 1994 U.S. Dist. LEXIS 21444, at *11-12 (W.D. Tenn. July 14, 1994) (“The fact of [requester former counsel’s] representation is a matter of public record... Whether an individual possesses a valid license to practice law is also a matter of public record and cannot be protected by any privacy interest”); Nat’l W. Life Ins., 512 F. Supp. at 461 (noting that names and duty stations of most federal employees are routinely published and available through Government Printing Office).

Again, disclosure of this FOIA-requested material concerning “Project Manager” Steve Kelley, one of the lead FAA figures in the creation and implementation of the intended Airspace Redesign, would clearly serve FOIA’s core purpose of contributing significantly to public understanding of the government’s operations and activities. See United States Department of Defense v. FLRA, 510 U.S. 487 (1994).

Exemption 6 requires a balancing of invasion of personal privacy on the one hand, and public interest in disclosure on the other hand. Department of Air Force v. Rose, 425 U.S. 352 (1976). To construe Exemption 6 of the FOIA otherwise, as proposed in the Cover Letter and the FAA Determination In Error, would create a vastly-overbroad exception which would swallow whole the general rule of mandatory disclosure required by 5 U.S.C. §552. Kelley’s contribution Documents must be produced, as well.

33. Kelley’s Reportings Cannot Be Concealed. Regarding the Cover Letter’s Item “1U” (Bates “000001”), whereby the FAA indicates - unbelievably! - that it is purposefully withholding Documents reflecting the persons and entities to whom Kelley reports - I am entitled to receive copies of all these Documents. I and the Rockland County citizens are fully entitled to know the names and identities of each government employee and government official participating in Kelley’s activities and in the intended implementation of the Redesign generally - and where, specifically, Kelley’s authority vis-à-vis the Redesign actually comes from. See, e.g., Armstrong v. EOP, 97 F.3d 575 (D.C. Cir. 1996); Trentadue v. President’s Council on Integrity & Efficiency, 2:03-CV-339, slip op. at 4 (D. Utah Apr. 26, 2004) (stating that agency made no showing of privacy interest, so names of government employees should be released).

Kelley’s (or anyone else’s) possible claimed privacy interest in such material or information does not even rise to a de minimis level. See, e.g., National Association of Home Builders v. Norton, 309 F.3d 26 (D.C. Cir. 2002). The law is clear that civilian federal employees have no expectation of privacy regarding their names. See 5 C.F.R. § 293.311 (2004) (OPM regulation specifying that certain information contained in federal employee personnel files is available to public); Core v. United States Postal Service, 730 F.2d 946, 948 (4th Cir. 1984) (finding no substantial invasion of privacy in information identifying successful federal job applicants); Nat’l W. Life Ins. v. United States, 512 F. Supp. 454, 461 (N.D. Tex. 1980) (discerning no expectation of privacy in names and duty stations of Postal Service employees). See also Barvick v. Cisneros, 941 F. Supp. 1015, 1020 n.4 (D. Kan. 1996) (noting that the agency had “released information pertaining to the successful candidates’ educational and professional qualifications, including letters of commendation and awards, as well as their prior work history, including federal positions, grades, salaries, and duty stations”).

Disclosure of this FOIA-requested material concerning “Project Manager” Steve Kelley, one of the leading FAA figures in the creation and implementation of the intended Airspace Redesign, and regarding his colleagues also working on the Airspace Redesign, would clearly serve FOIA’s core purpose of contributing significantly to public understanding of the government’s operations and activities. See United States Department of Defense v. FLRA, 510 U.S. 487 (1994).

Exemption 6 requires a balancing of invasion of personal privacy on the one hand, and public interest in disclosure on the other hand. Department of Air Force v. Rose, 425 U.S. 352 (1976). To construe Exemption 6 of the FOIA otherwise, as proposed in the Cover Letter and the FAA Determination In Error, would create a vastly-overbroad exception which would swallow whole the general rule of mandatory disclosure required by 5 U.S.C. §552. The FAA could not even articulate a non-laughable reason for why this material is being withheld under FOIA.

34. If Kelley Can’t Stand The Heat, He Should Get Out Of The Kitchen. The fact of the matter is that the public, and Rockland County citizens on particular, are fully-entitled to know everything about Kelley relative to his work, and what his job duties are or may have been in the past. This is the price of his working in a decision-making capacity for a federal governmental agency. Kelley has no privacy interest in the very public question of whether he is a suitable choice of public official to affect the health and lives of the millions of people affected by the intended Airspace Redesign. All the requests in the underlying FOIA are carefully-calculated so as to unearth the true answer to that question, not the ipse dixit answer that the FAA would seek to force me and others in Rockland County to accept and believe. The more that the FAA seeks to conceal about Kelley, the more it is clear that there must be things to hide.

35. What Is He “Recovering” From?. Kelley said, in public, repeatedly, that he was an admitted “federal bureaucrat” and a “recovering air traffic controller”. We in Rockland County, New York want to know, among other things, what it actually is that Mr. Kelley may have “recovered” from. His joke, if it was one, was no joke to us. Aside from the clearly-objectionable conduct and FAA plans he espoused, Kelley’s weird and disturbing mannerisms and comments at the July 12 and July 30 meetings shook the faith of Rockland County citizens in the FAA and the sanctity vel non of its and his decision-making, including my own faith - and led Rockland County citizens such as myself to believe that this was not at all the man who should be making or even participating in policy decisions affecting our legal rights, safety, health, and quality of life. He and others at the FAA lied to the Rockland County public about the start date of the Redesign. Kelley lied to my face when citing Harriman State Park as a federal park. And Kelley lied to my face when stating in public in front of a thousand people at the July 30 meeting in Hillburn, that he did not produce two pictorial maps to me as compelled by FOIA. We in Rockland County believe that he and others at the FAA have regularly and persistently lied to us about other aspects of the Redesign. He wholly lacks the comportment of a responsible federal employee and official. In this regard and for this and other reasons, I intend to seek plenary judicial relief to the full extent that the underlying FOIA continues to be met with the FAA’s obstructionist and obscurantist tactics as delineated hereinabove.

36. Many Pages Are Illegible. Finally, I note that the FAA did not even bother to make clear, unoccluded photocopies of the produced documents when forwarding them to me. As witnessed by the within enclosures, the following Bates-stamped pages were produced in occluded or otherwise illegible condition, for the reasons as noted below and herein:

000007: Holes punched through text at top.
000009: Holes punched through text at top.
000010: Hole punched through text at top.
000011: Holes punched through text at top.
000012: Hole punched through text at top.
000013: Hole punched through text at top.
000015: Hole punched through text at top.
000017: Hole punched through text at top.
000022: Text at left margin and right margin occluded.
000025: Unexplained and baseless redactions.
000026: Unexplained and baseless redactions.
000029: Text at left margin occluded.
000035: Unexplained and baseless redaction.
000036: Text at left margin occluded.
000038: Text at left margin occluded.
000051: Text at left margin occluded.
000060: Text at left margin occluded.

Legible copies of each of these pages, and all other requested and appealed-for Documents, should be immediately produced to me.

The foregoing is written without prejudice to any right or claim, all of which are hereby expressly reserved. Govern yourselves accordingly.

Very truly yours,
John J. Tormey III, Esq.
---------------------------------------------------------------------------------

---------------------------------------------------------------------------------

XI. EPILOGUE

http://www.narth.com/docs/deathwish.html

Sigmund Freud once stated ironically that, “The aim of life is death”. He explains his theory by pointing out that in the beginning there was no life on our planet. When the first living cells emerged, they were probably alive for only a moment and then quickly returned to the inanimate state. The inanimate state is the natural state of being, while life is a kind of aberration. So the moment an inanimate object comes alive, it is conflicted; part of it wants life, but part of it wants to return to its “natural” inanimate state. Speculating on the evolution of the first life to appear on our planet, he writes, “The tension which then arose in what had hitherto been an inanimate substance endeavored to cancel itself out. In this way the first instinct came into being: the instinct to return to the inanimate state”. Still later, [Freud] uses sexual intercourse to explain the opposing forces of eros and thanatos: we seek sexual excitement (the life instinct), but when we become too excited we seek release from excitement in the form of the orgasm (the death instinct--i.e., the return to inanimate matter).

Freud went on to link this death instinct with the repetition compulsion and with masochism. To him, the repetition compulsion, as seen in dreams that conjure up a “psychical trauma of childhood”, hark[en] back to the wish to return to an inanimate state, or, in other words, to return to the womb. In explaining the connection between the death instinct and aggression he notes, “During the oral stage of the organization of the libido, the act of obtaining erotic mastery over an object coincides with that object’s destruction”.

THE FAA: THEIR ONLY “METRIC”, IS DEATH