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ICYMI: DOT General Counsel Confirms Phil Washington Qualified by Statute, Needs no Waiver

Mar 10, 2023

DOT General Counsel : “No further analysis is required to confirm Mr. Washington’s eligibility.”

“If Congress had wanted to impose additional restrictions on individuals with prior service in the military, it could have done so.”

In case you missed it, in a letter to Senator Ted Cruz obtained by The Hill and Reuters, Department of Transportation General Counsel John Putnam confirmed that Phil Washington is statutorily qualified to serve as FAA administrator and that he requires no waiver for prior military service to be considered a civilian. The letter and legal analysis confirm that attempts to insist Washington needs a waiver are solely delay tactics to slow his confirmation.

In his letter, General Counsel Putnam wrote, “Your assertion that Mr. Washington is not a ‘civilian’ under 49 U.S.C. § 106(c)(2) because, decades ago, he served in the Army as an enlisted soldier is not supported by the law or the facts.  It is well established that Congress is understood to ‘say[] in a statute what it means and mean[]  in a statute what it says there.’ A fundamental principle of statutory construction, applicable here, is that when the language of a statute is plain and unambiguous, it must be applied  according to its terms… Section 106(c)(2) does not define ‘civilian,’ so the term’s plain and unambiguous meaning is  controlling.”

“No further analysis is required to confirm Mr. Washington’s eligibility. If Congress had wanted to impose additional restrictions on individuals with prior service in the military, it could have done so.”

The letter obtained by The Hill, can be viewed HERE and below:

March 9, 2023 

The Honorable Ted Cruz 

Ranking Member, Committee on Commerce, Science, and Transportation United States Senate

Washington, DC 20510 

Dear Ranking Member Cruz: 

Thank you for your letter of March 2, 2023, regarding the nomination of Phil Washington to be Administrator of the Federal Aviation Administration (FAA). I detail below both law and facts to  highlight Mr. Washington’s substantial credentials to lead the FAA. 

Your letter raises two questions: (i) whether Mr. Washington has the requisite “experience in a field directly related to aviation” as required by 49 U.S.C. § 106(c)(3); and (ii) whether Mr.  Washington satisfies the statutory requirement in 49 U.S.C. § 106(c)(2) that the FAA  Administrator “be a civilian” in view of Mr. Washington’s enlisted service in the United States  Army, from which he retired in 2000 as a Command Sergeant Major. As explained further  below, the clear answer to both questions is yes. 

Mr. Washington’s tenure running Denver International Airport (DEN) clearly gives him the invaluable “experience in a field directly related to aviation” required by the 49 U.S.C. §  106(c)(3). Moreover, contrary to your assertions, aviation safety is central to Mr. Washington’s  experience as an airport director. Airport Directors have final authority over essential safety related functions and must interact with the FAA, airlines, and other airport users daily on a wide  variety of airspace, operational, navigation aid, and capital issues essential for the safe and  efficient operation of the National Airspace System. Mr. Washington fulfilled these duties on  behalf of the third-busiest airport in the world that safely served 69 million passengers in 2022. 

In fact, Congress agreed this experience is “in a field directly related to aviation” when it enacted Title 49 of the United States Code, Subtitle VII, which covers “Aviation Programs” and  repeatedly includes airport safety, development and operations among these aviation programs,  including the entire Part B dedicated to airport issues. 

Congress directly and emphatically answered the question in Section 47101 when it made clear  that it is the policy of the United States “that the safe operation of the airport and airway system  is the highest aviation priority” and that “airport construction and improvement projects that  increase the capacity of facilities to accommodate passenger and cargo traffic be undertaken to 

the maximum feasible extent so that safety and efficiency increase and delays decrease.”And, as part of its core safety requirements, Congress has mandated that large commercial airports like  DEN secure and maintain operating certificates to ensure safety.2  

The importance of the airport safety environment is especially critical now; the FAA has  established runway safety as a top priority and recent close calls have occurred in the airport  environment, where the Air Traffic Organization, aircraft operators and airports must work  together to ensure safety. In fact, Acting Administrator Nolen is convening a Safety Summit next  week to address these issues, explicitly including airport representatives, recognizing their  central role in runway safety. 

Notably, the FAA Administrator oversees the FAA’s Office of Airports and its leader, the  Associate Administrator of Airports, and safety at over 5000 airports nationally. The successful  administration of airport safety is so integral to the FAA’s work that the Associate Administrator  of Airports is also a political appointee of the President’s, recognizing the vital interplay between  airports, airport safety, and the communities in which airports reside. In fact, the Office of  Airports is the third largest line of business within the FAA in terms of employees.

Mr. Washington has direct experience operating one of the busiest Part 139 airports and is  responsible for safety certification, managing current capital development of new gates and  terminals to meet airline and passenger needs, and planning for future runway, terminal and other  development to support Denver’s ability to grow from accommodating 69 million to 100 million  passengers per year. This is not only experience in a field directly related to aviation but  experience in the safety, capacity, and operational areas that Congress has designated as  priorities for our aviation system.3 

Safety is the core mission for airport directors, especially for those subject to the certification  requirements of Part 139 of the Federal Aviation Regulations.4Indeed, airport directors,  sometimes referred to as an airport’s Director of Aviation or Chief Executive Officer (CEO),  provide key leadership, organizational strategy, and direction to a variety of stakeholders across  the airport environment to ensure safe operations. These stakeholders include engineering,  planning, financial, revenue development, IT, police, aircraft rescue firefighting, procurement,  legal, marketing, public relations, and building management, as well as third-party vendors that  provide services to the traveling public, and to local and state jurisdictional bodies. 

Airport CEOs establish and maintain oversight of safety management systems across the airport  operating environment to support operational efficiency on the ground and across the national  airspace system.This includes leading cross-functional teams to ensure the safety of daily  operations by coordinating with tenants such as airlines, fixed based operators, and cargo  operators as well as with local, state, and federal agencies in complying with complex civil  aviation requirements focused on safety and security. Airport CEOs also execute airport strategic  plans and manage complex, dynamic, fast-paced environments. In doing so, they work with Making aviation secure in the terminal, on the airfield, and en route requires strategic planning  and relationships with a variety of stakeholders. In addition to overseeing thousands of badged  airport personnel, airport CEOs also work hand in hand with the Transportation Security  Administration, as well as federal law enforcement agencies and airport, city, and state police  departments to maintain a secure environment. This security oversight also includes  responsibility for all emergency responses at the airport, which can include aircraft fire and  rescue, snow removal, bomb threats, UAS intrusions, or hijackings as well as terminal security to  limit access to terminal and airside operations areas. These efforts require continuous  coordination with airlines, FAA’s Air Traffic and Airports organizations, first responders, and  local, state and federal agencies, such as the Department of Homeland Security. 

The Denver Airport CEO and his team also work closely with the Air Traffic Organization and  nearby aerospace facilities such as Buckley Air Force Base and the Colorado Air and Spaceport  (six miles from DEN), regarding airspace issues to ensure safety, efficiency, compatibility, and  

reducing noise exposures for nearby residents. This is especially essential as DEN seeks to safely  accommodate 30 percent more passengers through the development of new airfield and other  facilities that need to be safely fit into airspace procedures. 

Airport CEOs provide leadership and work closely with airlines and FAA’s Air Traffic, Aviation  Safety, and Airports Organizations to coordinate construction activities, severe weather event  responses, aircraft emergencies, wildlife hazard issues, and other significant events such as  presidential temporary flight restrictions or military aircraft operations that may impact airport  operations. Airport CEOs also coordinate with other parts of the U.S. Department of  Transportation, including those that oversee and/or support highway access, bridges, tunnels, and  rail and transit service. This requires state and local system planning, compatible and sustainable  infrastructure development, funding, and maintenance and operation of major transportation  networks. 

It is clear that an airport CEO has the requisite “experience in a field directly related to aviation.”  From managing and overseeing billions of dollars in airport safety projects, to working with  safety action teams to mitigate and address critical safety issues that arise, Mr. Washington has  the knowledge, experience, and leadership in managing critical complex operations to ensure that  the air transportation system at DEN remains safe. He is responsible for ensuring the safety of all  ground movement of aircraft at DEN, the safety of all aircraft and personnel in rescue and  firefighting operations on airport grounds, and the safety of all on-site fueling and repair  operations. 

Previous confirmations of FAA Administrators who are widely considered to have been highly  effective further illustrate the point. For example, in 2012, the Senate confirmed Michael Huerta (D) as Administrator after he served for two years as FAA’s Deputy Administrator; Mr. Huerta had not previously worked in aviation before his appointment as Deputy Administrator. In 2002,  the Senate confirmed Marion Blakey (R) as Administrator after she served as the Chair of the  National Transportation Safety Board for one year and had previous experience at the National  Highway Traffic Safety Administration. And in 1997, Jane Garvey (D) was confirmed as  Administrator after two years leading Boston’s Logan Airport and previous experience with  other non-aviation areas of transportation.Mr. Washington’s experience not only meets, but  exceeds the qualifications of the position when viewed historically. Any claim that his important  aviation safety-related work as CEO of DEN is insufficient “experience in a field directly related  to aviation” is not supported by the law, history or facts, given the important aviation safety  responsibilities of airport CEOs and the similar qualifications of past FAA Administrators. 

Your assertion that Mr. Washington is not a “civilian” under 49 U.S.C. § 106(c)(2) because, decades ago, he served in the Army as an enlisted soldier is not supported by the law or the facts.  It is well established that Congress is understood to “say[] in a statute what it means and mean[]  in a statute what it says there.”A fundamental principle of statutory construction, applicable  here, is that when the language of a statute is plain and unambiguous, it must be applied  according to its terms.This can include referring to a word’s definition in the dictionary to  identify its regular usage.9 

Section 106(c)(2) does not define “civilian,” so the term’s plain and unambiguous meaning is  controlling. Dictionaries are consistent in defining “civilian” as a person who is not on active  duty in the military.10 The U.S. Department of Justice’s Office of Legal Counsel (OLC) reached  the same conclusion as to the meaning of “civilian” when it considered the requirement in the  Space Act that the Administrator of the National Aeronautics and Space Administration (NASA)  “be appointed from civilian life.” As OLC explained, “the usual definition of ‘civilian’ includes  retired military personnel who are not on active duty,” ultimately determining that Charles  Bolden, a retired Marine Corps Major General, could serve as NASA Administrator.11 

Mr. Washington retired from the U.S. Army after 24 years of stellar service in July 2000 as a  Command Sergeant Major. Since his retirement from the military nearly 23 years ago, Mr.  Washington has engaged in solely civilian pursuits and clearly fits the plain and widely  understood meaning of the word “civilian.” 

No further analysis is required to confirm Mr. Washington’s eligibility. If Congress had wanted  to impose additional restrictions on individuals with prior service in the military, it could have  done so. Indeed, in 49 U.S.C. § 106(d), Congress imposed limitations on who could serve as  Deputy Administrator of the FAA, based upon the prior military service of the Administrator.12 Section 106(d) confirms both that Congress understood that former service members would serve  as Administrator and that Congress could have specified additional requirements for service as  Administrator. 

To be sure, Congress has, on occasion, passed laws and granted waivers to certain retired officers  to allow them to serve as FAA Administrator. Pursuant to the plain text of 49 U.S.C. § 106(c),  those waivers were not necessary to make the nominees eligible to serve as FAA Administrator.  Mr. Washington is fully qualified to serve as FAA Administrator pursuant to 49 U.S.C. § 106(c),  and no waiver of this statutory provision is required. 

It bears noting that leadership success in a field often comes without granular, technical  knowledge. Surveying the leadership of the aviation field supports this fact overwhelmingly. Of  the 10 largest commercial airline CEOs, only one is a former pilot. As you note, this is a pivotal  time for the FAA and for aviation in the United States. Leading an organization at a crucial time requires a person with a track record of recruiting and motivating personnel, setting audacious  goals, and executing them while never losing sight of the mission. Phil Washington, a highly decorated Army veteran with significant experience successfully leading, managing, and  innovating large, complex organizations – including a critical part of our aviation system,  airports – has done this with four major organizations. If anything, the fresh perspective he will  bring to his top-to-bottom assessment of the FAA’s culture and operations will be a benefit. Mr.  Washington is fully qualified and eligible under 49 U.S.C. § 106 to serve as FAA Administrator.  The Administration encourages his swift confirmation. I have sent a similar letter to the co signer of your letter. 


John Putnam
General Counsel


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