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Head of Denver Airport Doesn’t Need Waiver to Lead the FAA, Biden Administration Says

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by Jacob Fischler, Michigan Advance
March 10, 2023

President Joe Biden’s nominee to lead the Federal Aviation Administration — the CEO of Denver International Airport — does not need a congressional waiver to allow him to serve in the role, the U.S. Transportation Department’s top lawyer said in a Thursday letter to Congress.

Federal law requires the FAA administrator to be a civilian and some Republicans, including U.S. Senate Commerce, Science and Transportation Committee ranking member Ted Cruz of Texas, had said Phil Washington, who served in the Army from 1976 to 2000, would require a waiver from Congress to serve in the role.

But Transportation Department general counsel John Putnam said in a Thursday letter to Cruz, obtained Friday by States Newsroom, that because Washington’s service ended more than two decades ago, he is not a member of the military.

“Mr. Washington retired from the U.S. Army after 24 years of stellar service in July 2000 as a Command Sergeant Major,” Putnam wrote in the letter. “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.”

A spokesperson for the Transportation Department confirmed the letter’s authenticity but declined to comment further on the issue Friday. 

Putnam, who was an energy, environment and transportation lawyer in Denver before joining the Biden administration, said he was responding to a March 2 letter from Cruz inquiring about Washington’s qualifications to lead the FAA. 

In a Friday statement, Melissa Braid, a spokeswoman for Republicans on the Senate Commerce Committee, disagreed with Putnam’s interpretation.

“Congress and the President have strictly, repeatedly, and on a bipartisan basis interpreted the law, since it was written, as excluding retired military members like Phil Washington,” she wrote. 

“Now a politically-appointed Department of Transportation lawyer from Denver simply denies this inconvenient truth and declares, based on a dictionary and an unrelated NASA statute, that Congress was wrong on the numerous occasions it required legislative waivers.”

Military background

Washington enlisted in the Army in 1976. He retired in 2000 as a command sergeant major. He then spent more than 20 years in public transit, leading agencies in Denver and Los Angeles before getting the job at Denver’s airport.

Federal statute requires the FAA administrator to be a “civilian,” though it does not define the term or say for how long a former service member must be retired. A similar requirement that the Defense secretary not be an active-duty military member requires a secretary to have ended their military career at least seven years before they are confirmed.

Congress can — and routinely does — grant waivers to allow former military members to serve in civilian roles. But Washington’s case is somewhat complicated because Republicans, who have largely opposed Washington’s confirmation, control the U.S. House and both chambers of Congress would have to approve a waiver.

The absence of a waiver could cause problems for the FAA under Washington, Cruz warned at a March 1 confirmation hearing.

“If Senate Democrats forced this nomination through without a waiver, a legal cloud will hang over every single FAA action,” the Texas Republican said.

Experience issue also dismissed

In his March 2 letter, Cruz also asked if Washington had experience in an aviation-related field, as federal law requires, according to Putnam’s letter. 

At the confirmation hearing, Cruz told Washington, who led large public transit agencies before taking the Denver airport job in 2021, that operating an airport was not sufficient aviation safety experience.

Putnam disagreed, saying past administrators had held similar experience. 

Jane Garvey, who was nominated by Democratic President Bill Clinton, had run Boston’s airport for two years after she spent most of her career in non-aviation areas of transportation. 

And Marion Blakey, who was nominated by Republican President George W. Bush, had chaired the National Transportation Safety Board and led the National Highway Traffic Safety Administration, but had limited experience in aviation, Putnam wrote.

“Mr. Washington’s experience not only meets, but exceeds the qualifications of the position when viewed historically,” he wrote. 

At the hearing, Republicans cited several reasons for opposing Washington, including his relatively thin aviation experience, a local corruption scandal when he was in Los Angeles and his stated commitment to diversity and inclusion. 

But Democrats rejected those claims, saying Washington had an excellent record as a manager and leader and was not involved in wrongdoing in the Los Angeles case. 

Longtime Commerce Committee member Brian Schatz, a Hawaii Democrat, said Republicans resorted to “fake scandals” to tarnish the Biden nominee.

A committee vote to advance Washington’s confirmation has not been scheduled.

Michigan Advance is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Michigan Advance maintains editorial independence. Contact Editor Susan Demas for questions: info@michiganadvance.com. Follow Michigan Advance on Facebook and Twitter.