The Long Road to Justice

More than 50 years ago, the government withheld financial reparations from the families of three plane-crash victims. Now that might change, thanks to Drinker Biddle & Reath

Published in 2004 Pennsylvania Super Lawyers — June 2004

Georgia, October 1948, midafternoon. Against the backdrop of the burgeoning Cold War and the picturesque countryside near the town of Waycross, a U.S.Air Force B-29 bomber cut through the clear autumn sky. Looking to the heavens, children at play could see a physical symbol of America’s victory in World War II, an emblem of American ideals, strength and durability.Then the B-29 exploded.

Thirteen men were on the plane when it lifted off. Only four made it back to the ground alive.Three of the unlucky ones were Albert Palya, Robert Reynolds and William Brauner, civilian engineers on board to test apparently secret electronic equipment.

The widows of the engineers sued the federal government. Representing them was Charles Biddle, a World War I ace pilot and partner at Philadelphia’s Drinker Biddle & Reath. He won the widows and their families a $225,000 judgment. However, on appeal to the Supreme Court, the government successfully argued that the accident report contained information so sensitive, so critical to the national security of the United States that to let even a judge see it would compromise the best interests of the nation. United States v. Reynolds has since become one of the nation’s preeminent precedents regarding the disclosure of military secrets, cited as recently as in the case against alleged terrorist Zacarias Moussaoui.

From a historical view, the standard set by United States v. Reynolds is certainly the most important fallout of the Waycross incident. But to the widows and children of the dead engineers, who had to accept a much lower settlement from the government, the struggle to live from day to day was of a bigger concern.

Judith Palya Loether, the daughter of engineer Albert Palya and his wife Elizabeth, had only a tangential relationship with her father.“When I was growing up,” she recalls,“there wasn’t a lot of talk about our father in our household, which I think is pretty typical in families that have remarried. But from my youngest years I can remember having another dad.There were engineer’s notebooks in the attic full of very complicated stuff and I would just look at them without any particular fascination.”

It was only later in life that Loether’s fascination became more particular.“When I had my own children I started thinking more about my own father.What was he doing on that plane when it crashed?” Not yet familiar with United States v. Reynolds or the precedent it set, Loether started looking into the case out of familial curiosity.“I only knew that my mother got money — I had no clue that they actually lost or about the Supreme Court.” 

Her perfunctory research didn’t turn up many leads until one memorable day in early 2000.“I was at a friend’s house and just happened to sit down at the computer and type ‘B-29+accident’ into AltaVista,” she says.“The first Web site on the list was called www.accidentreport.com. I clicked on it and the top of the page said ‘Air Force accident reports from all Air Force accidents from 1918-1955.’”

Loether ordered the report on the Waycross accident, which had been declassified in 1996 along with all other similar reports dating through 1955.After spending her whole life not knowing what had really happened to her father, she received the answers in about two weeks.Though she didn’t quite realize it at the time, what she found in the report was startling.

The no-longer-secret documents — the same ones that the Air Force desperately wanted to keep under wraps half a century earlier to protect the nation’s security — revealed little more than an inadequately maintenanced plane, crew error and civilians who hadn’t been trained in emergency procedures (the one civilian engineer who hatch and took his chances in the sky rather than in the bomber). However, more important than what the report did reveal was what it didn’t reveal. It divulged no overt information on any secret military project or activities, despite the government’s original claims.The report seems to point to the Air Force’s failure to install heat shields in the B-29 as the ultimate cause of the crash.“When you put your lawn mower away in the fall and then in the spring it doesn’t work, that’s what this plane was like,” Loether says.

Loether didn’t yet have intentions of pursuing the issue in a legal setting.“I must have read the accident report fairly closely 10 times,” she says. “It was stewing on that burner in my mind for a long time.As time went on, I was more aggravated. Reynolds was based on a lie, and somebody should know that. I decided to at least rattle a couple of cages.”

In the meantime, Loether had made contact with the families of the other two engineers killed aboard the B-29.The time had come to bring the truth behind the tragedy to light. Loether eventually turned to the firm that had represented her mother — Drinker Biddle & Reath.Although Charles Biddle had passed away, Loether wrote a passionate e-mail beseeching his firm to help. Attorney Wilson Brown took up the call.

“It’s an irresistible story. Our firm has aconnection with these people. It was our case,” he says.A civil litigator by trade, Brown may seem outside his element, but he and co-counsel Jeff Almeida are convinced they’re as prepared for the case as anyone could be. “I don’t think anyone has handled anything like this before,” Brown says.“We think we’re right.We ought to win.”

But what about United States v. Reynolds and the precedent set by it? “We’re not attacking the precedent,” Brown says. “National security is for other courts to deal with. I don’t think if we prevail that it will change national security law.” Essentially, the misfortune of the victims’ families stems from the government’s desire to be allowed to withhold military secrets at its discretion.

“This case was set up as a test case [to establish the Reynolds precedent],” Brown says.

To Judith Palya Loether, the end does not justify the means.“I love my country, and I maybe have idealistic notions about the USA and my government, feeling we do the right thing.This was certainly not the right thing,” she says.“The government shouldn’t be allowed to lie. I expect more out of my government than that.

“Our hardship is over — this is about the immorality of what my government did,” she continues.“My dad ended up dying for the Air Force — why did they make sure my mother didn’t get that money?

“I want someone to say to the government,‘You can’t do this.You cannot lie to the court.What you did is wrong.’”

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