NMUSAF Asserts Ownership Over CAF P-82

JDK · **Posted:** Wed Sep 10, 2008 2:28 am

Robbie Roberts wrote:

Just tell me what to say top my representatives to get them to raise holy hel l with the NMUSAF for trying to take the F-82. The FAA says the owner is the CAF. The paperwork says it is theirs.

But Robbie, it doesn't. It was conditional.

Interesting discussion if you read all the factual stuff presented here.

While I'd love the CAF to get an F-82 into the air, they need to play a lot smarter with the appeal than in this case they just lost. Being in denial of the conditions it was placed with them is not going to win, and stirring up grief, if legally the CAF can't make a good case, isn't going to help, IMHO.

Regards,

mustangdriver · **Posted:** Wed Sep 10, 2008 4:59 am

I don't really know much about the whole deal, but with the amount of talking here going on, I have to ask this. What IF, I said IF it really does belong to the NMUSAF? And they are just getting back what is theirs. Would you all do the same?

Tim Savage · **Joined:** Mon May 03, 2004 8:26 pm **Posts:** 630

I have to agree with this may have wider implications for other warbird owners. While it may not set a legal precedent it (I am no lawyer) it may create a mindset that if the NMUSAF or the Naval Musuem wants an airplane, they should dig into all the paperwok and look to see how valid they feel the transfer is. I don't know how many of you have actually gone back and look at some of the paperwork used to register warbirds back in the 50s, 60s and 70s, but some of it is sketchy to say the least.

It is important to understand that the FAA will register and airplane if you provide them enough paperwork that in their opinion gives you title...it may not be legal from a USN or USAF perspective. Case in point, the F-82.

I could imagine a scenario where a military museum decides they want a particular airplane. Maybe it is an airplane that isn't worth millions and is owned by a middle class guy. He invests a lot of money to restore it. He then finds out it has particularly important history. The museum comes along digs into the records and finds some irregularities in the surplus paperwork. Will the owner have the money to fight the the government? Not likely. Even if he is in the right, he may not have the abiliity to prevail in court.

Just good for thought...

k5083 · **Posted:** Wed Sep 10, 2008 9:01 am

I appreciate Doug R.'s contribution.

With respect to Doug, though, I think Mark is right, based on the documents this case does not smack of home court advantage and there generally is no such advantage in federal court.

Everyone should appreciate the procedural posture of this case. The USAF won on summary judgment, which means the judge determined there are no material issues worthy of sending to trial before a jury. If reversed on appeal, it doesn't mean the CAF wins, it means the case will go to trial if the parties don't settle it first.

I have read the briefs, and the CAF did score some points. Both sides have some strong arguments and some soft ones. The CAF pretty much toasted the USAF on whether the transfer was a loan or a donation. That, however, was not crucial to the court's decision. Like Jim, I look forward to tracking the appeal.

Some of you have suggested, in effect, bringing this case before the court of public opinion and arousing outcry against the USAF's heavy handedness. I would caution you that the general public may not perceive the parties the way you do. This is wartime, patriotic and pro-military fanaticism are at a high tide based on the bumper stickers in my neighborhood, and the USAF is very much admired and respected. Most of the public has not heard of the CAF and the USAF may depict them as a bunch of cowboys who horsed around with an old fighter plane for a few years, wrecked it, then neglected it for 20 years, then tried to trade it for a flyable fighter plane to horse around with. Some of the rhetoric in the USAF's briefs is already tending in this direction. So be careful what you wish for.

August

Shay · **Posted:** Wed Sep 10, 2008 9:42 am

I have some questions..............

If the NMUSAF is stating that the F-82 was unauthorizedly loaned/donated by USAF personnel.

Then why didn't the NMUSAF claim the aircraft years ago, like when it was still flyable?

If the NMUSAF is saying the contract isn't legal then why did this only come about when the CAF wanted to trade it (as per the contingent in the contract)?

And how is it determined that the USAF Personnel were not authorized?

it's been 40 years since the deal was struck, is there a statue of limitations on the NMUSAF being able to claim a non-valid contract?

Last I thought was the NMUSAF (USAF Museum back then) doesn't fall into the USAF's chain of command. The NMUSAF already had a F-82 as of 1957. So what was to stop the USAF from donating a surplus airframe to other than the USAF Museum?

Who were the USAF personnel? Squadron CO, Base Commander, who?

I know the NMUSAF controls these issues now, but was this always the case back in the 50s and 60s?

Shay
_____________
Semper Fortis

Robbie Roberts · **Posted:** Wed Sep 10, 2008 10:29 am

This situation, with the questions just posed regarding how they did things then vs now, reminds me of a situation in south Jersey this past summer. A local National Veterans Cemetery has replaced headstones each year as necessary due to weathering, etc. In the 40s, 50s, 60s, 70s, the old headstones were given away by the cemetery to local residents to use in whatever fashion they desired. They were considered as trash, as there was a shiny new one in its place, and the late veteran was still had a headstone...

This was acceptable for decades. Well, this past year, some muffinhead in the Pentagon or some such, decided that these used, broken, and discarded headstones, in peoples possession for up to 60 years, were now US Govt. Property, and had been discarded without respect to rules written recently! So they sent crews around to every home they could find with them, and collected them! They threatened legal action against the people who had used them as paving stones, garden borders, etc. And they asked anyone who had one to please let them know so they could come confiscate them! RIDICULOUS!

It all comes down to the fact that when something is given freely, some jackass will find a way to f*** with you about it, with some claim...

Robbie
(PS- I never saw the CAF-USAF docs, so I can't be sure of the exact status of the donation. But if it only recently appearred on their inspection list, it sounds like someone is revising history at NMUSAF- and that sets a dangerous precedent)

k5083 · **Posted:** Wed Sep 10, 2008 10:36 am

Shay wrote:

I have some questions..............

Shay, I think all of your questions could be answered by reading the decision at the link I posted on page 1 or 2 of this thread. Just from memory, to save you the trouble, I'll try to answer, but I haven't re-read it to answer your questions so you should really recheck if my answers arouse your interest.

Quote:

If the NMUSAF is stating that the F-82 was unauthorizedly loaned/donated by USAF personnel.

It is not the NMUSAF suing the CAF, it is the USAF. The USAF is not saying that the whole transfer was unauthorized, only that the USAF personnel involved were not authorized to waive the USAF's right of repossession if the terms were violated.

Quote:

Then why didn't the NMUSAF claim the aircraft years ago, like when it was still flyable?

Because in the USAF's view, the CAF had not yet violated the terms, therefore they had no reason to take it back.

Quote:

If the NMUSAF is saying the contract isn't legal then why did this only come about when the CAF wanted to trade it (as per the contingent in the contract)?

See above. The USAF is not saying the contract isn't legal.

Quote:

And how is it determined that the USAF Personnel were not authorized?

For that you need to see the opinion for details. You'll find that this not-authorized argument is really a backup for the USAF; their main argument, on which they prevailed, is that there never was an outright, encumbrance-free transfer, even an unauthorized one.

Quote:

Last I thought was the NMUSAF (USAF Museum back then) doesn't fall into the USAF's chain of command. The NMUSAF already had a F-82 as of 1957. So what was to stop the USAF from donating a surplus airframe to other than the USAF Museum?

IIRC at the time the USAFM was under USAF Air Logistics Command. I think that today it is under the Materiel Command. Rumors of the NMUSAF being a separate entity from the USAF are greatly exaggerated.

Quote:

Who were the USAF personnel? Squadron CO, Base Commander, who?

See the opinion, but at least one was actually a civilian employee. Whoever they were, they weren't the Secretary of the Air Force, who apparently was the only one who could authorize an absolutely unrestricted transfer.

Quote:

I know the NMUSAF controls these issues now, but was this always the case back in the 50s and 60s?

No, the NMUSAF is not a party to this case. It's the Air Force.

August

Shay · **Posted:** Wed Sep 10, 2008 10:56 am

Thank you August for the clarification.

All this time,I was under the impression that it was the NMUSAF that was spearheading this issue.

Can anyone explain to me why the Dept. of the USAF would concern itself with 60 year old aircraft, especially in light of more pressing concerns to contend with these days?

Thanks

Shay
____________
Semper Fortis

RickH · **Posted:** Wed Sep 10, 2008 11:05 am

NMUSAF is a part of AMC. NMUSAF works hand in hand with AMC and they provide the muscle for Gen Metcalf.

Forgotten Field · **Posted:** Wed Sep 10, 2008 11:47 am

Quote:

Can anyone explain to me why the Dept. of the USAF would concern itself with 60 year old aircraft, especially in light of more pressing concerns to contend with these days?

Precedent, precedent, precedent. Within the last few years, DOD has been going about claiming back pieces of equipment that were given out with various provisions that allowed the return of the equipment when it was no longer being used in the manner prescribed in the conditional award certificate. Cannons and tanks in front of VFW's were the subject of this effort. It perturbed a number of people who had acquired such artifacts from defunct VFW's and American Legion posts- subsequent transfers of possession which were recognized as "ownership" had occurred and the DOD said they were null and void as the equipment belonged to the DOD.

While it might seem like a small current in a wide river, this affects any equipment that is given away by the US Government, anywhere, under any circumstances. The whole Demilitarization system in DOD has gotten out of hand, to the extent that they will not provide you with documents to gain title to a vehicle in a state if the vehicle is declared "residue." If you fix it up, it can be problematic to title it and run it on the road. This is true for much of the rest of items that come out through the Defense Reutilization and Marketing Operations (DRMO) which are now handled by a soul source contractor (Government Liquidation).

I can understand what August is saying about the ruling, and that it is a summary judgement. But I think it portends disaster for people who purchase anything from the Feds, use it in a way they choose, and then have it taken away when they don't follow conditions of release. There is no manufacturer which can stipulate how a product is used after it is sold, and there is no gun salesman out there that can tell somebody to "not kill an intruder" after a gun leaves the store. So why can DOD and their components do that, and have the law at their backs to take back equipment when you don't "use it" the way you care to? How are states going to handle issues of title between government and individuals? It's a mess, it's being overblown by the USG (like the F3A situation. certain SB2C's, ) and I think the USG has better things to do than interfere in what is essentially private commerce.

[/quote]

k5083 · **Posted:** Wed Sep 10, 2008 12:00 pm

FF, I agree with some of what you say, but:

Forgotten Field wrote:

There is no manufacturer which can stipulate how a product is used after it is sold, and there is no gun salesman out there that can tell somebody to "not kill an intruder" after a gun leaves the store. So why can DOD and their components do that, and have the law at their backs to take back equipment when you don't "use it" the way you care to?

Not true (or, to the extent your examples are true, not relevant). The USAF in this instance did not do anything that a private party could not do. For example, if I donate memorabilia to the CAF (or to the NMUSAF for that matter), I can attach conditions that the museum will not sell or trade it, will maintain it, or will not use it in certain ways, or else it reverts back to me. I could donate an aircraft to the NMUSAF under the condition that it will not be repainted, else I get it back. We are just talking about an ordinary contract here, not any special government power. If the museum didn't want to accept my conditions, it could refuse the donation. In 1966 the CAF wanted the F-82 real bad and was willing to accept certain conditions and it signed on the dotted line. The suit is about whether those conditions have become unenforceable or were actually broken.

August

Mudge · **Posted:** Wed Sep 10, 2008 12:23 pm

Help me out here. I can't find, in all this thread, just when (how long ago) the trade was going to take place. I have a few more opinions to voice once I know that.
Anyone...Belushi...anyone

Mudge the interested

rwdfresno · **Posted:** Wed Sep 10, 2008 12:46 pm

Forgotten Field wrote:

Quote:

Can anyone explain to me why the Dept. of the USAF would concern itself with 60 year old aircraft, especially in light of more pressing concerns to contend with these days?

Precedent, precedent, precedent. Within the last few years, DOD has been going about claiming back pieces of equipment that were given out with various provisions that allowed the return of the equipment when it was no longer being used in the manner prescribed in the conditional award certificate. Cannons and tanks in front of VFW's were the subject of this effort. It perturbed a number of people who had acquired such artifacts from defunct VFW's and American Legion posts- subsequent transfers of possession which were recognized as "ownership" had occurred and the DOD said they were null and void as the equipment belonged to the DOD.

While it might seem like a small current in a wide river, this affects any equipment that is given away by the US Government, anywhere, under any circumstances. The whole Demilitarization system in DOD has gotten out of hand, to the extent that they will not provide you with documents to gain title to a vehicle in a state if the vehicle is declared "residue." If you fix it up, it can be problematic to title it and run it on the road. This is true for much of the rest of items that come out through the Defense Reutilization and Marketing Operations (DRMO) which are now handled by a soul source contractor (Government Liquidation).

I can understand what August is saying about the ruling, and that it is a summary judgement. But I think it portends disaster for people who purchase anything from the Feds, use it in a way they choose, and then have it taken away when they don't follow conditions of release. There is no manufacturer which can stipulate how a product is used after it is sold, and there is no gun salesman out there that can tell somebody to "not kill an intruder" after a gun leaves the store. So why can DOD and their components do that, and have the law at their backs to take back equipment when you don't "use it" the way you care to? How are states going to handle issues of title between government and individuals? It's a mess, it's being overblown by the USG (like the F3A situation. certain SB2C's, ) and I think the USG has better things to do than interfere in what is essentially private commerce.

[/quote]

You know what is interesting is that we obtained an M5 Stuart tank from a local entity that there was no record of how it ended up with the local entity. We purchased the tank from the local entity and had proof of doing so however at one point the government came to inspect a canon for demil. At that time they noticed the M5 and did some research and was unable to find any documentation in their archives regarding the Stuart. Despite the fact there was no documents that indicated that the Army had ownership of any sort to the tank they pursued reclaiming it.

It took a few years of debate but in the end the Army did the right thing and gave us a letter recognizing that they had no claim to the item. It never made it to the point where we had to get lawyers involved. It was a good demonstration of how things can go right. I wish this CAF situation would have had a similar outcome however I fear that over time, the fact that we live in a situation where the government fears the empowerment of its' citizens, we will see more of these negative outcomes coming down the pike.

k5083 · **Posted:** Wed Sep 10, 2008 1:02 pm

Mudge wrote:

Help me out here. I can't find, in all this thread, just when (how long ago) the trade was going to take place. I have a few more opinions to voice once I know that.
Anyone...Belushi...anyone

Mudge the interested

2002, Mudge. Let's hear the opinions!

August

John Beyl · **Posted:** Wed Sep 10, 2008 1:24 pm

DougR wrote:

All,

A few points that haven't been made here:

First, at the time the "trade" for the P-38 was made, the CAF believed, and we still do, that we own the airplane outright. We hold a clear FAA title, and we (the board of directors) were not aware of either of the USAF transfer agreements dating back to the '60s.

Second, when we became aware of the agreements, even though we believed then, and still do believe, that we own the airplane outright, we undid the "trade" as a measure of good faith. (in retrospect, that might have been a mistake. We have a clear title and a document from the Air Force that transferred the airplane to us without restrictions that post-dates the restricted donation.)

Third, at the time we made the "trade" we had no benefactor willing to undertake the project and the party to the "trade" had the desire and the resources to make the airplane fly again. We believed it was in the best interest of the airplane to allow someone who could restore it to have a take a turn as the custodian of the airplane. All of us would love to see a P-82 fly and we believed that the "trade" would make that happen in short order. What an exciting thought

Fourth, We believed a flying P-38 would be more useful in our mission of telling the story of airpower in preserving freedom than a P-82 restoration project without a benefactor.

Fifth, The situation has changed. Since that time there has been serious interest in undertaking the restoration on behalf of the CAF by parties with the resources to do it.

Finally, the CAF has negotiated in good faith from the start and the AF museum has been unwilling to discuss any option other than, send it back.

There was a time when the CAF philosophy was to acquire and hang on to any and everything and someday, when we were able, we would undertake the project. That was not in the best interest of the airplanes, and that has changed. The new position is, if we can't restore an airplane, we should let someone else who can become the custodian of the airplane. Our effort to sell the Mauler to Eric was an example of that. The decision to trade the P-82 was in the best interest of the airplane under the circumstances at that time.

The circumstances are different today, the CAF is now in a position to be a good steward of the P-82, we believe we own it outright and the Air Force Museum is trying to take it from us. They won the first round with a home court advantage and they have a much larger legal budget than us. That horse can not be let out of the barn.

This case has implication to all warbird owners and enthusiasts.

Any and all support is needed and appreciated.

Tailwinds,
Doug Rozendaal
CAF Board Member

Doug,

No third degree with bright lights, dripping water and thumb screws just curiosity but could you please clarify for me, this statement you wrote:

“…We have a clear title and a document from the Air Force that transferred the airplane to us without restrictions that post-dates the restricted donation.)”

I have to assume this document surfaced after the judge heard both sides of the argument and had adjourned to make his decision or else it would have been the piece of ‘Slam dunk’ documentation the CAF needed to retain ownership of the P-82. If it was known of at the time of the hearing, for heavens sake why was it not brought into evidence?

I’m certainly not a lawyer but even to me none of the documentation presented on behalf of the CAF proved any kind of permanent ownership. They appear to be clear and unquestionable. One a statement of conditional donation, the other a release so the CAF could get it licensed and fly it. What am I missing?

In your fifth point you wrote: “…Since that time there has been serious interest in undertaking the restoration on behalf of the CAF by parties with the resources to do it.” That seems to disagree with what the Old Shep wrote earlier. In one of his posts he mentioned that the party once interested in paying to restore the aircraft has withdrawn their original offer to do so. If this is true, and if the CAF were to retain ownership of the aircraft, what would be its future with the organization?

The P-82 has always been a favorite of mine. That said I would like to see the CAF retain ownership of the airplane and eventually return it to flying status and operate it.

Thanks,
John

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NMUSAF Asserts Ownership Over CAF P-82

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