Hoover’s Flying History v. His Battle with the FAAwhich would make a better documentary?

bob hoover faa battle pilot
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There’s no doubt about it Robert A. “Bob” Hoover is one of the, if not the, most heroic and accomplished fighter, test and acrobatic pilots in the history of aviation. The facts in support of this statement (excerpts from his Aviation Hall of Fame citation) are as follows:

  • Learned to fly at Nashville’s Berry Field and taught himself aerobatics.
  • First World War II assignment was in Casablanca testing planes before going into combat.
  • bob robert hoover faa battle pilotAssigned to the 52nd Fighter Group in Corsica.
  • Flew 58 missions before being shot down and spent 16 months as a POW.
  • After the war, was in the Flight Evaluation Group at Wright Field, Ohio where he flew captured aircraft and the latest USAF aircraft.
  • Alternate pilot for the Bell X-1, Hoover flew the chase plane as close friend Chuck Yeager broke the sound barrier, October 14th, 1947.
  • In 1950 he began a 36 year association with North Aviation and Rockwell International.
  • Experimental flight tested the Navy FJ-2 jet fighter and the USAF F-86 and F-100.
  • Only person to serve two terms as president of the Society of Experimental Test Pilots.
  • Captain of the 1966 U.S. Acrobatic Team at the international competition in Moscow.
  • World renown aerobatic pilot and his P-51 in a main attraction at the Reno Air Races.
  • In 1985 established a coast-to-coast record flying a P-51 form Daytona Beach to Los Angeles in 5 hours and 20 minutes.
  • His Shrike Commander was placed on display at the National Air and Space Museum, Udvar-Hazy Center, in Dulles, Virginia.
  • Robert A. Hoover has thrilled millions of men, women and children over the last five decades with his acrobatic flying maneuvers. In addition, he has flown over 300 types of aircraft and flight tested or flown nearly every type of fighter aircraft.

That resume puts him in a pantheon of extraordinary aviators of all time. His fans are many and include some of the other greats in aviation.

faa battle robert bob hoover pilot

He has asked a team to create a book and a documentary, to be called an “Air of Injustice” which will chronicle what happened in his battle with the FAA and the NTSB and then at the US Court of Appeals of the District of Columbia. The proceedings were highly contested all the way through and Mr. Hoover was represented by the famous litigator, F. Lee Bailey (who was also PATCO’s counsel).

The below announcement of the documentary also mentioned that the film will serve as a prelude to the advances in aviator rights created by Sen. Inhofe’s Pilots’ Bill of Rights, both version 1 and the pending version 2. The Senator from Oklahoma has added important protections to the rights of pilots. Its implementation has been a challenge to both the FAA and the NTSB. The second iteration of PBOR has extended these rights to virtually all certificate holders. The Rights which these Inhofe Bills have established were needed and much appreciated by the aviation industry and those who represent the respondents to FAA allegations.

Whether the history of Hoover v. FAA is as clear-cut as his pilot record book can be debated. Mr. Campbell’s book will certainly reflect the facts as developed by his research and his perspective. There may be another side to this unfortunate saga.

The start of the battle was precipitated by two FAA inspectors who watched the air show performed by Mr. Hoover in 1992 and saw some flight maneuvers which they believed to suggest that the aviator’s medical and/or mental faculties were less than the regulations required. The standard was not whether his proficiency at age 70 was exemplary but whether his skills were those required of all pilots of all ages.

[A quick aside: in some of the stories, it is alleged that these two ASIs were either {i} looking to support the validity of the FAA’s 60 rule, which was being contested in several forums then and/or {ii} envied Hoover and were trying to nail him as some badge. As to {i} anyone who believed that the field FAA employees would take an action trying to support an HDQ policy like the Age 60 rule has missed the great disdain of the agency line personnel for Washington. While {ii} may be true, ASIs had to clear any such action with their managers, Regional Counsel and the Regional Flight Surgeon plus in all likelihood those three disciplines in Washington. A true vendetta would be quashed.]

A narrative next moves to the knowable facts as found in the most reliable points of reference—the NTSB and the USCA for the District of Columbia.

The unanimous opinion of the 5 Board Members was to uphold the Administrator. In a 25 page, well analyzed and supported opinion, they carefully reviewed the evidence submitted by Mr. Hoover’s counsel and the FAA’s attorney. The decision first recited the standards of 14CFR §§ 67.15 and 67.17(d)(2)(ii) and (f)(2) (mental and neurologic; general medical condition), which were the bases of the FAA emergency action due to the alleged “cognitive deficit” of Mr. Hoover. The NTSB then noted the extraordinary career of 50 years and his extraordinary talents.

The meat of the judgment derives from the Board’s detailed, lengthy review of the expert testimony and their medical reports. The witnesses were as follows:

  • Garrett O’Connor, M.D., a psychiatrist, carried out a clinical evaluation of respondent to determine the possible presence of neuropsychological facts which might disqualify respondent from holding a medical certificate. (p.4+)
  • Robert Elliott is a board-certified neuropsychologist. He devotes fifty percent of his practice to the evaluation of pilots, consulting with most of the major air carriers and with the FAA. He has performed over 800 evaluations of airmen since 1976. (TR-45). Dr. Elliott performed twelve neuropsychological tests on respondent: the Wechsler Adult Intelligence ScaleRevised (WAIS-R); the Trail Making Test (parts A and B); the Booklet Category Test; the Rey Osterrieth Complex Figure Test; the Rey Auditory-Verbal Learning Test; the Wisconsin Card Sorting Test; the Boston Naming Test; the Wechsler Memory Scale-Revised; the Controlled Oral Word Association test; the Manual Finger Tapping Test, and the FAA Computerized Cognitive Screening Battery (COGSCREEN). (p.4-7 and 11)
  • Michael E. Gold, M.D., a neurologist. (p.7-8)
  • Albert Salcedo, M.D., performed SPECT scan on November 4, 1992. (p.8)
  • Uchiyama, a neuropsychologist at the University of California at Los Angeles (UCLA) Institute and Hospital. Dr. Uchiyama administered 18 tests, including most of those previously administered by Dr. Elliott. (p.8-11)
  • Mena, UCLA, performed a SPECT scan at on June 1, 1993. (p.10-11)
  • Richard Gaines is a pilot and a board-certified neuropsychologist. He has examined over 1100 pilots in the last 20 years, including 14 years on active duty performing aviation related research psychology. (p.11)
  • Jonathan Pincus, M.D., has been the Chief of Neurology at Georgetown University Hospital since 1986, full professor at Yale Medical School. His particular interest is in behavioral neurology, movement disorders, Parkinson’s Disease and Alzheimer’s Disease. (p.12-14 ~16)
  • Brent Hisey, M.D., is a Board-certified neurosurgeon and a Flight Surgeon with the Air Force Reserves. He is also a pilot. Dr. Hisey examines at least 20 pilots a month for the Air Force. (p.16-17)
  • David Johnsen has been a clinical psychologist since 1987. He is not Board-certified as a neuropsychologist, but he is licensed by the State of Oklahoma to perform neuropsychological assessments. (p.17-18)
  • Antoinette Appel is a neuropsychologist, and in fact holds the first degree ever awarded in neuropsychology in the United States. (p.18-19)
  • Theodore Simon, M.D., is a professor of radiology at the University of Texas Southwestern Medical Center, and is board certified in nuclear medicine. (p. 19-20)
  • Ziessman is the Director of Nuclear Medicine at Georgetown University. (p.20)

[note: some of  these experts were called by the FAA and some by Mr. Hoover’s counsel.]

The Board found that the balance of the testimony favored the FAA.

[All of these highly credentialed doctors were very impressive in their knowledge and analysis. The critical issue was the impact of concussions on Mr. Hoover’s brain, plus the strains of pulling high Gs and the effect of age on his cranium. It is unfortunate that all of the research as a result of the NFL’s concussion controversy was not available then.]

Here is a portion of the Board’s concluding paragraphs:

“Based on the foregoing, we are compelled to set aside the initial decision. We have reviewed the entire record de novo, and we find that the Administrator’s expert witnesses’ testimony was far more persuasive than respondent’s witnesses’ testimony. Dr. Elliott’s test results are never refuted. Indeed, his findings are confirmed by subsequent testing. Moreover, by Dr. Appel’s own admission, when the test results obtained by Dr. Johnsen are compared with norms which are not age-corrected, there is significant impairment in several cognitive skill areas. We are convinced that the public’s interest in aviation safety requires that respondent’s cognitive testing results be compared with more than the norms for the average 70 year old person. Respondent is not seeking a license to perform everyday activities. Respondent seeks an unrestricted second-class airman medical certificate so that he may continue to perform aerobatic routines in front of numerous spectators. In any event, we are convinced that the neuropsychological testing which suggests cognitive deficit is confirmed by what all of the neurology experts agree are abnormal findings on the radiological scans. We fail to see how the law judge could find the testimony of Dr. Appel, a neuropsychologist, regarding her interpretation of the SPECT scans, more in depth or persuasive than Dr. Ziessman’s testimony, as he is an expert in nuclear medicine. Even Dr. Simon, respondent’s expert in nuclear medicine, cannot state that degenerative brain disease is excluded by these scans – he only suggests trauma as another explanation. In any event, we think that Dr. Pincus’ and Dr. Ziessman’s testimony that there is a change in the June, 1993 SPECT scan, a right-dorsal frontal profusion defect, not apparent in the October, 1992 SPECT scan, refutes the explanation that trauma is the probable explanation for the abnormal SPECT scan findings. We conclude that the Administrator proved by a preponderance of the evidence that respondent has a cognitive deficit which makes him unqualified to hold an unrestricted second-class airman medical certificate.”

As opinions go, that is a very convincing and definitive statement.

As a footnote, with reference to the PBOR, this case did not involve any denial of records by the FAA to Mr. Hoover; there were no issues a presumption that the NTSB must defer to the FAA’s interpretation of the FARs; the DME issue was not involved; there were no assertions that the Administrator’s representatives abused the pilot’s rights.

Mr. Hoover’s legal team wrote an appeal to the US Court of Appeals for DC. Three judges ruled unanimously, Hoover v. National Transportation Safety Board, 43 F. 3d 712 (1994), against the famed pilot by stating:

“There is substantial evidence in the administrative record to support the National Transportation Safety Board’s conclusion that the Administrator proved by a preponderance of the evidence that the petitioner’s license was properly revoked under 49 U.S.C. Sec. 44709(b)(1)(2) and 14 C.F.R. Sec. 67.15.” [emphasis added]

These impartial jurists found in the favor of the FAA and the Supreme Court denied certiorari.

After the Court decided in favor the US, based on new information provided by Mr. Hoover, the same Federal Air Surgeon concluded that the condition that they were concerned about several years ago was not present later in the same degree and so they were able to issue a certificate on the basis of that new data.

faa hoover pilot robert battle

In addition to these two review proceedings it is appropriate to read the professional judgments of two senior FAA officials. Jon L. Jordan, MD, JD, the Federal Air Surgeon at the time, wrote a lengthy explanation of the medical/psychological aspects of the Hoover case in 2012. A second useful source of information is an interview by Scott Dwyer legal editor of Aviation Consumer questioned Anthony J. Broderick, FAA Associate Administrator for Regulation and Certification[i]. The almost 7,000 word transcript is an excellent exposition of the issues and a reader may make her/his own judgments on credibility.

[i] The author and Mr. Broderick were colleagues for many years at the FAA.

There is no doubt that the flying life of Bob Hoover would be a source of entertainment and education about a seminal figure in aviation history. The value and benefits of the PBOR 1+2 would make an excellent essay, particularly the way in which the Senior Senator of Oklahoma moved his first bill through Congress so adroitly. The battle between the honored fighter pilot and the FAA would entail so much legal dialogue that it would test the audience’s attention span. Chronicle what happened in the FAA v Bob Hoover action, but will undertake an examination of the opportunities available to recraft a more just, representative future for the flyers of today… and tomorrow.

 

ARTICLE: Bob Hoover to the FAA: The Fight’s Not Over

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1 Comment on "Hoover’s Flying History v. His Battle with the FAAwhich would make a better documentary?"

  1. Steele S. Scott | March 8, 2017 at 12:06 pm | Reply

    Dear Attorney Murdock,
    I was fascinated by your article about Bob Hoover’s Flying History vs. FAA Battle. Thank you for the depth and interesting exploration in this arena. As a pilot of 50 plus years, now 64, following a bicycle accident with a concussion in Jan 2015, I an now working on my third year to recover my medical certificate. To be fair, my story, like many, is complicated by background factors.

    Nonetheless, I find myself in the greatest of company and honored to be on this working team. Recently reading John King’s struggle and a quick correspondence with him, this subject is bigger than my plight, that is useful as I approach nearly $20,000 from my retirement savings to move through all of the stages required.

    This comment should remain a tribute to you, Bob Hoover and the many more accomplished pilots with more at stake, but it is one more story to add to the list of many. As I was reading your article I was struck by what it must have felt like for Bob Hoover to sit through the multitude of cognitive tests. In an odd way, I found solace that the Bob Hoover had to go through the same long, long list of day long exams that I have encountered.

    As a pilot these tests and this process is a great mystery when you start and takes a lot of money and time away from flying, staying proficient in the cockpit, my income is 20% or less in the past two years. It might seem like I am complaining or blaming the FAA, to be sure I am smarter and quicker cognitively than ever before after all the hard work with professionals, I don’t mean to complain or blame the FAA.

    The FAA has a very, very, very tough job with the millions of risks that need to be managed under their mission. Rather I would like to find a better way forward to help the FAA and Pilots with a clearer road map of what to expect, why this is happening and find a cooperative working solution(s) that enhances the FAA and our important resource of pilots.

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