The Senate Commerce, Science and Transportation has finally scheduled a confirmation hearing for Phil Washington’s nomination to run the Federal Aviation Administration – March 1 at 10 a.m., seven-and-a-half-months after he was first nominated on July 11, 2022.

(The original nomination died via inaction at the expiration of the 117th Congress, and Washington was instantly re-nominated on the first day of the 118th Congress on January 3.)

(Disclaimer: Phil Washington is a former member of the Eno Center Board of Directors and participates in many Eno activities and events.)

The hearing may give light on how the Biden Administration (and, as importantly, Senators) are interpreting a 65-year-old statute requiring that the FAA Administrator be “a civilian.” In the past, “civilian” has been interpreted to mean complete separation from any kind of membership in an armed force – including membership on the retired list – which has forced some previous Administrators to resign from the retired list and forego their military pensions before they can take the FAA Administrator oath of office.

The 1958 law

When the Federal Aviation Agency was created in 1958, the new agency was going to merge military airspace with civilian airspace. Congress was very concerned that the new FAA remain independent, particularly from the military. Senator A.S. “Mike” Monroney (D-OK), the principal author of the bill creating the FAA, later summarized: “In 1958, and for many years prior thereto, there was a great conflict between the military users of airspace and the civilian users. Frankly, the military attitude was ‘we will take what we want of the airspace; use it as long as we want and for whatever purpose we want, and the civilian users can have what is left.’ Such an attitude created grave air safety problems and was detrimental to the development of a strong national air transportation system. There were other areas in which civilian and military aviation were in conflict. As has been the tradition in this country, it was decided that there should be civilian control of our airways.” (Cong. Rec., June 17, 1965, p. 14045.)

As a result, section 301(b) of the FAA Act required that “At the time of his nomination he [the Administrator] shall be a civilian…” That requirement was moved into title 49, United States Code during codification in 1983 and slightly reworded so that today, section 106(c) of title 49 requires that the Administrator “be a civilian…”

What does “civilian” mean, in this context?

The answer may depend on whether you believe in using “legislative history” to interpret statute, or whether you are a “textualist” of some stripe who only believes in the words written in the law itself.

To the average person, civilian probably means “not an active duty service member.” The average person today might also say that someone who is an active Reservist is not a true civilian, since they still serve the occasional weekend and can get called up. But a is a retiree, who has been retired for decades, a civilian?

To the extent that you believe in legislative history, the statement of managers to accompany the conference report on the 1958 FAA Act (House Report 2556, 85th Congress, 2nd Session) on page 87 says that no, retirees receiving pensions are not civilians:

“The requirement in section 301(b) that the Administrator be a civilian at the time of his nomination means that he shall be a civilian in the strictest sense of the word. Thus, at the time he is nominated he may not be on the active or retired list of any regular component of the armed services or on extended active duty in or with the armed services.”

(Of course, that explanatory language was not signed by the Senate conferees, only the House conferees, because from 1880 through the end of 1970, the House had a rule that conference reports had to be filed with an explanatory statement, but the Senate did not, so all of the explanatory statements were only signed by the House members and therefore are less reliable guides to legislative intent than the joint explanatory statements that started in 1971.)

Past interpretations

1958. The FAA Act was signed into law on August 23, 1958. Five weeks later, President Eisenhower issued a statement announcing that he had given his aviation advisor, retired Air Force Lt. Gen. Pete Quesada, a recess appointment to be FAA Administrator, effective on November 1, 1958, and that “Before that effective date, Mr. Quesada will resign his Commission as a Lieutenant General on the retired list of the Regular Air Force, thereby qualifying under the provision of law for this appointment. Mr. Quesada’s resignation represents a sacrifice which I feel reflects his high sense of public duty.”

But Eisenhower was not done. He went on to state:

“The fact that a man of Mr. Quesada’s qualifications is obliged to resign his retired status in the Regular Air Force to comply with the letter of the law so he can again serve his country does not, in my opinion, seem logical or desirable.

“I am confident that it was not the intention of the Congress that in Mr. Quesada’s case his additional public service should deprive him of the honors and status acquired during his years of service to his country in the military establishment and, lately, as my Special Assistant.

“I hope that the Congress, when it convenes in January, will adopt legislation which will restore him to the status he had prior to his resignation and, at the same time, permit him to serve as Administrator of the Federal Aviation Agency.”

It wasn’t done in January, but by August of 1959, a bill had been introduced (S. 2500, 86th Congress) to restore Quesada’s rank and benefits once he left the FAA. (It was a “private bill” – specific to Quesada, by name, and no one else.) The Senate Armed Services Committee held a short hearing on the bill on August 13, at which Senator Monroney said “General Quesada freely resigned all rights that he had to accept this appointment …There was some discussion that the act should be amended to permit a commissioned officer to serve. The committee resisted that but felt that once the Administrator had resigned, his commission should be restored.”

The bill restoring Quesada’s rank and pension was enacted as Private Law 86-177 on September 16, 1959.

1965. In 1965, President Johnson wanted to appoint a retired Air Force general to run the FAA, but this time, they sought permission in advance from Congress. On April 29, President Johnson wrote to the House and Senate Commerce Committees saying that he wanted to nominate W.F. “Bozo” McKee for the FAA job, but “The general’s retired status and the policy developed at the time of the establishment of the Agency that the Administrator should be a civilian would impose upon him the burden or requiring him to make an unreasonable financial sacrifice and subject his family to the risk that they would be denied, in the event of his death, the benefits of his present retired status which they rely upon for their security…legislation similar to that enacted by Congress to authorize Gen. George Marshall to serve as Secretary of Defense is required to permit General McKee to serve as FAA Administrator and retain his retired status.”

Johnson sent up draft legislation, which got House hearing on May 12 and a Senate hearing on May 14. During House debate on June 3, an amendment was offered to strike the “must be a civilian” requirement from the FAA Act, which failed by voice vote, and then the bill passed by a fairly partisan margin of 228 to 137. After Senate debate on June 17, questions lingered, and Sen. Vance Hartke (D-IN) moved to recommit the bill back to committee so Commerce could hold pre-nomination hearings at which McKee would testify on whether or not he should even be nominated. This motion on failed by two votes (33 yeas, 35 nays), and then the bill passed, 46 to 20. It became Public Law 89-46 on June 22, and Johnson promptly nominated McKee (who was confirmed by the Senate).

A precedent was then set, but a difficult one – getting a pre-nomination law enacted waiving the civilian requirement was not only time-consuming, it also gave the House of Representatives a veto on the advise and consent process, which was previously a jealously guarded, Senate-only prerogative. And not a veto through action – simple House inaction on a waiver bill would be enough to scuttle a nomination unless the nominee was willing to forego his pension and benefits.

1973. In January 1969, an Air Force colonel named Alexander Butterfield retired after 20 years of service so he could take a job in the White House as the right-hand man to chief of staff H.R. Haldeman. Four years later, during President Nixon’s great staff reshuffling at the start of his second term, Nixon nominated Butterfield to run the FAA (announced on December 19, 1972, and transmitted on Opening Day on January 4, 1973).

Apparently, when the White House first made the announcement and the nomination, no one remembered that retirees were not considered truly civilians in this context, and the White House sounded Congress out about getting a McKee-style waiver law. But by this point, the Watergate investigation was heating up, and Haldeman was already so unpopular (he would be forced to resign on April 30, 1973) that Butterfield’s close association with him sapped goodwill from Congress. It was obvious that he would not get a preemptive waiver law like McKee had received, so the White House withdrew his nomination in early February, allowed him to resign from the retired list, then re-submitted the nomination on February 26.

At his March 1 confirmation hearing, Butterfield said “Once I learned that special legislation would have little chance of passing the Senate and House, and that resolution one way or the other would probably take months, I did what I felt I had to do – wrote the letter to Secretary Seamans asking that my name be dropped from the retired roles.”

Butterfield was confirmed as Administrator on March 12. Four months later, on July 16, Butterfield etched his name in the pages of history when he testified before the Senate Watergate Committee and revealed the existence of President Nixon’s Oval Office tape recording system, which Butterfield had installed.

Although this was Butterfield’s only link to Watergate, it was a big one, and it hampered his ability to perform the FAA job adequately. After he left, he sought a Quesada-style private bill to restore his pension and benefits, but after debate on May 20, 1975, the Senate defeated the bill on a vote of 42 yeas, 47 nays. Butterfield never got his pension and benefits back.

1984. Congress enacted Public Law 98-256 on April 10, 1984, a McKee-style law allowing retired Navy Vice Admiral Donald Engen to remain on the retired list while serving as FAA Administrator. Engen served from April 1984 to July 1987.

1989. Congress enacted Public Law 101-47 on June 30, 1989, a McKee-style law allowing retired Navy Admiral Jim Busey to remain on the retired list while serving as FAA Administrator. Busey served from June 1989 to December 1991.

1991-1992. When Jim Busey moved up to Deputy Secretary of Transportation, George H.W. Bush again went to a retired officer, Air Force Major General Jerry Curry (who had been running NHTSA) to run the FAA, and Congress enacted Public Law 102-223, a McKee-style advance waiver, on his behalf. But when the attempt to get him confirmed before the end of session failed, things went south, with the White House ordering him to resign in early February and Curry at first refusing to do so (read this amazing Washington Post story for details). Curry eventually agreed to leave in late March and his nomination was formally withdrawn on April 9.

Bush then turned to another retired four-star, Air Force General Thomas Richards, to run the FAA, and Congress again enacted a McKee-style advance waiver (Public Law 102-308) on June 26, 1992. Richards served as Administrator for the remainder of Bush’s term.

The tally currently stands at five nominees given special dispensation in advance by law to serve while remaining on the retired list, one nominee who resigned from the retired list and later had his pension and benefits restored via a private Act of Congress, and one nominee who resigned from the retired list and never got his pension and benefits restored.

Commissioned versus non-commissioned officer.

One thing that all of the previous nominees mentioned above had in common was that they had all served as “commissioned officers” – they all had a piece of paper, signed by the President, appointing them to office and ordering those of lesser rank to obey the commissioned officer. The commissioning documents all say that “This commission is to continue in force during the pleasure of the President of the United States of America for the time being, under the provisions of those Public Laws relating to Officers of the Armed Forces of the United States of America and the component thereof in which the appointment is made.” Promotions to higher grades of commissioned officer are subject to Senate confirmation.

Commissioned officers retain their commission while on the retired list, and are subject to being recalled to active duty at any time.

But Phil Washington enlisted in the Army as a private and eventually rose to chief master sergeant (a “noncommissioned officer”). Noncommissioned officers (sergeants and chief petty officers of many varieties) don’t get a piece of paper signed by the President – instead, they get a certificate of appointment signed by a commissioned officer. And their relationship to the service, while on active duty, is more contractual – they sign up for fixed terms of service, and then renew if they choose.

But enlisted retirees, too, are subject to recall to active duty – 10 U.S.C. §688 says that “A retired member of the Regular Army, Regular Navy, Regular Air Force, Regular Marine Corps, or Regular Space Force…may be ordered to active duty by the Secretary of the military department concerned at any time… under regulations prescribed by the Secretary of Defense…”

And the Uniform Code of Military Justice (UCMJ) says, in Article 2(a)(4) that “Retired members of a regular component of the armed forces who are entitled to pay” are subject to the UCMJ.

Practically speaking, even if there is a need, Phil Washington will never be recalled to active duty, because, per the Army regs, “Retired Soldiers who reach age 60 prior to the announcement of a mobilization will not be involuntarily mobilized,” and he is past that age. But, theoretically, regulations can be changed.

There are other differences, as well. Holding a commission signed by the President gives a person a status under U.S. and international law as an official part of the government to a degree that is somewhat lacking on the noncommissioned side. (Eric Haney, a member of the founding training cadre of the Army’s Delta Force, wrote that for certain kinds of special forces covert missions that involved being in foreign countries without permission, they only sent sergeants – no commissioned officers – because, in the event they got caught, it is much more difficult under international law to deny that a commissioned officer was there on behalf of the United States, conducting policy. Noncoms can more plausibly be disavowed.)

The fundamental question

Is an Army enlisted man, who retired from active duty 23 years ago and now draws a pension, but who theoretically remains subject to recall to active duty until his death, now a “civilian”? Most people, as the word is commonly used today, would probably say “yes.” The House conferees on the 1958 FAA Act disagreed and said that anyone on the retired list is still military, not civilian, and every military retiree who was nominated to head the FAA from 1958-1992, all of whom were commissioned officers, was treated by Congress as being military, not civilian.

In the last few decades, judicial reliance on legislative history to interpret law has declined (thanks, Justice Scalia). Should the statement of the House conferees in 1958 be used in 2023 to define “civilian” in a way that may not be in common use?

(This is the point where the Biden Administration is supposed to whip out an authoritative legal opinion from the Office of Legal Counsel at the Justice Department interpreting this provision one way or the other. The fact that no one will tell me whether or not such a legal opinion even exists is disconcerting.)

Sam Graves (R-MO), the new chairman of the House Transportation and Infrastructure Committee, said in a January speech to the Aero Club that he believed that Washington’s nomination would require a waiver of 49 U.S.C. §106 and that he would not support such a waiver law because he does not support the nomination (based on what he says is the nominee’s relative lack of aviation experience).

But if the Administration takes the position that the nominee, as a noncommissioned officer on the retired list since 2000 and receiving a pension, is a “civilian” for purposes of 49 U.S.C. §106, and a majority of the Senate decides to go along with that interpretation and confirms Washington, there aren’t any obvious remedies for opponents. Someone, somewhere, will eventually challenge an official regulation or action taken by Administrator Washington in federal court, and in addition to the usual Administrative Procedure Act challenges, the lawyers might also use that opportunity to further challenge the FAA action on the grounds that Washington was not legally eligible to serve. But that would be an uphill fight taking place years from now.

In the meantime, a legal opinion from the Office of Legal Counsel (or the White House Counsel) on this issue would be more than welcome.