Joshi Ex Rel. Estate of Joshi v. National Transportation Safety Board , 791 F.3d 8 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 24, 2015 Decided June 19, 2015
No. 14-1034
YATISH JOSHI, INDIVIDUALLY, AS EXECUTOR OF THE ESTATE OF
GEORGINA JOSHI AND MEMBER OF YATISH AIR, LLC,
PETITIONER
v.
NATIONAL TRANSPORTATION SAFETY BOARD AND FEDERAL
AVIATION ADMINISTRATION,
RESPONDENTS
On Petition for Review of a Decision of
the National Transportation Safety Board
Brian E. Casey argued the cause and filed the briefs for
petitioner. Timothy J. Maher entered an appearance.
Howard S. Scher, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief was
Michael J. Singer, Attorney.
Before: GRIFFITH and MILLETT, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
GRIFFITH, Circuit Judge: After a tragic plane crash, the
National Transportation Safety Board (NTSB) completed an
2
investigation and issued a Factual Report and a Probable Cause
Report identifying the pilot, Georgina Joshi, as the most likely
cause of the accident. The pilot’s father, Yatish Joshi, filed a
petition asking the agency to reconsider its conclusion in light
of new evidence he gathered. The Board denied the petition.
Joshi now seeks review of both the NTSB’s reports of its
investigation and the response to his petition for
reconsideration. Because neither the reports nor the response
can be considered a final order subject to judicial review, we
dismiss this case for lack of jurisdiction.
I
On April 20, 2006, a private airplane crashed near the
Monroe County Airport in Indiana, claiming the lives of the
pilot, Georgina Joshi, and all four passengers. With help from
two Federal Aviation Administration (FAA) investigators, the
NTSB conducted an investigation of the accident in
accordance with its statutory duties under the Federal Aviation
Act to determine “the facts, circumstances, and cause or
probable cause” of the crash. 49 U.S.C. § 1131(a)(1). The
NTSB’s purpose in conducting such investigations is “‘to
promote transportation safety’” and “‘formulat[e] safety
improvement recommendations.’” Graham v.
Teledyne-Continental Motors, 805 F.2d 1386, 1389 (9th Cir.
1986) (quoting 49 U.S.C. § 1901(1) (1982)); see also 49 C.F.R.
§ 831.4 (“Accident and incident investigations . . . are . . . used
to ascertain measures that would best tend to prevent similar
accidents or incidents in the future.”). The agency does not
engage in traditional agency adjudications, nor does it
promulgate or enforce any air safety regulations. “Rather, it
simply analyzes accidents and recommends ways to prevent
similar accidents in the future.” Chiron Corp. v. NTSB, 198
F.3d 935, 937 (D.C. Cir. 1999). At the conclusion of an
investigation, the NTSB compiles and publishes a final
3
accident report that contains factual findings, a probable cause
finding, and recommendations for any safety improvements
thought necessary. See 49 U.S.C. § 1131(e); see also Chiron,
198 F.3d at 939. Such reports are used within government
agencies to determine whether to promulgate additional safety
regulations. Upon the completion of the investigation of
Joshi’s crash, the NTSB released a Factual Report and a
Probable Cause Report (the Reports). The Factual Report
explained the various data the agency gathered, including
information on the aircraft, the weather conditions, the airport
where Joshi attempted to land, and the state of the wreckage.
The Probable Cause Report gave a brief summary of the
accident and concluded that it was likely the product of the
pilot’s actions during the approach to landing.
Petitioner Yatish Joshi, the father of Georgina Joshi,
believed that the investigation was not thorough and the
Reports were faulty. He took it upon himself to hire an
engineering firm to reconstruct the accident by analyzing radar
data, air traffic control transmissions, witness statements, and
other relevant materials available to the NTSB during the
investigation. After gathering evidence, the engineering firm
concluded that another plane most likely interfered with
Georgina Joshi’s flight path and caused her to take evasive
action, which caused the crash. Yatish Joshi petitioned the
NTSB to reconsider the Probable Cause Report 1 and submitted
as new evidence the results of the investigation by the
engineering firm, along with a Department of Justice (DOJ)
1
Although Joshi only petitioned for reconsideration of the
Probable Cause Report, he challenges both Reports on appeal.
Because we conclude that neither of the Reports is an order of the
NTSB, we need not concern ourselves with whether Joshi’s failure to
challenge the Factual Report before the NTSB raises questions of
exhaustion.
4
letter addressing the settlement of civil litigation related to the
accident. 2 Joshi argued in his petition that the engineering
report showed that a second aircraft was operating in the area
and contributed to the accident. He also claimed that the civil
litigation had revealed that certain FAA failures played a role
in the crash, that the FAA had admitted as much in the DOJ
letter, and that this merited inclusion in the Probable Cause
Report. The NTSB reviewed Joshi’s materials, but found that
the engineering firm’s methodologies were flawed, that its
conclusions were not supported by the evidence, and that new
witness statements the firm had obtained and relied upon were
consistent with the NTSB’s original report. The NTSB also
addressed the alleged FAA failures and concluded that proper
procedures were used and that the DOJ letter Joshi submitted
did not show otherwise. Because in its judgment the probable
fault remained with the pilot, the NTSB denied the petition for
reconsideration. Joshi now petitions this court for review of the
Reports and the denial of his petition for reconsideration.
2
In 2008, Joshi filed a claim against the United States under the
Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq., asserting
that the FAA’s actions contributed to the crash because it failed to
properly staff its facilities, adequately train the controller on duty the
night of the accident, and provide adequate weather information to
the controllers. That case was settled and, as a condition of the
settlement, the Department of Justice provided Joshi with a letter.
After reciting Joshi’s arguments as to how the FAA’s own actions
had contributed to the accident, the letter concluded that “[a]lthough
the United States would present a full defense to these allegations if
this case were tried, we have agreed to settle this case based upon our
assessment that the court could find merit in at least some of these
allegations and determine that air traffic control negligence was a
cause of this unfortunate crash.” J.A. 186.
5
II
The Federal Aviation Act limits our jurisdiction to the
review of “final order[s] of the National Transportation Safety
Board.” 49 U.S.C. § 1153(a). We have explained that to
constitute a final, reviewable order, “an agency disposition
must mark the consummation of the agency’s decisionmaking
process, and it must determine rights or obligations or give rise
to legal consequences.” Safe Extensions, Inc. v. FAA, 509 F.3d
593, 598 (D.C. Cir. 2007) (internal quotation marks omitted).
In considering whether NTSB reports satisfy these
requirements, we note that we are not the first court to answer
this question. In Gibson v. NTSB, 118 F.3d 1312 (9th Cir.
1997), the Ninth Circuit was presented with similar facts when
a pilot petitioned for review of the NTSB’s determination that
he and his flight crew were responsible for a plane accident.
The court concluded that there was no final agency action for it
to review because the NTSB reports and denial of the motion
for reconsideration lacked the necessary “determinate
consequences.” Id. at 1315.
We agree. According to NTSB regulations, accident
investigations are “used to ascertain measures that would best
tend to prevent similar accidents or incidents in the future.” 49
C.F.R. § 831.4. They are considered “fact-finding proceedings
with no formal issues and no adverse parties. They are not
subject to the provisions of the Administrative Procedure Act
and are not conducted for the purpose of determining the rights
or liabilities of any person.” Id. (citation omitted). Indeed,
under the Federal Aviation Act and related NTSB regulations,
no part of an NTSB accident report that relates to an accident
investigation may be admitted as evidence or for any other use
in civil litigation. 49 U.S.C. § 1154(b); 49 C.F.R. § 835.3.
Thus, no legal consequences of any kind result from the
NTSB’s factual report or probable cause determinations.
6
Joshi alleges that various consequences have resulted from
the Reports, including reputational harm, financial harm,
emotional harm, and informational harm. But even if Joshi is
right and has suffered such harms, these are practical
consequences, not legal harms that can transform the Reports
into a final agency order and trigger our jurisdiction. We
explained the distinction between practical and legal
consequences in Reliable Automatic Sprinkler Co., Inc. v.
CPSC, 324 F.3d 726 (D.C. Cir. 2003). There, the agency
conducted an investigation into the safety of the appellant’s
sprinkler heads, issued a statement of the agency’s intention to
make a preliminary determination that the sprinkler heads
presented a substantial product hazard, and requested that the
appellant take voluntary corrective action. Id. at 731. The
appellant sued the agency, arguing that the agency lacked
jurisdiction to regulate the sprinkler heads. We dismissed the
case for lack of jurisdiction, holding that the agency had not
completed a final agency action. We recognized that “there
may be practical consequences, namely the choice [the
appellant] faces between voluntary compliance with the
agency’s request for corrective action and the prospect of
having to defend itself in an administrative hearing should the
agency actually decide to pursue enforcement.” Id. at 732. But,
we explained, the agency’s actions “clearly ha[d] no legally
binding effect.” Id. So too here. The consequences Joshi
alleges are surely realities that he has faced following the
release of the Reports, but unless the NTSB’s actions result in a
legal consequence, we lack the power to review them.
Joshi seeks to avoid the outcome in Reliable by citing our
review of an FAA determination in what he claims is an
analogous situation in Aircraft Owners and Pilots Ass’n v.
FAA, 600 F.2d 965 (D.C. Cir. 1979) (“AOPA”). But that case
involved a very different sort of agency undertaking, with very
7
different consequences. In AOPA, we held that the FAA’s
determination that the construction or alteration of a structure
near an airport is hazardous constitutes a final order subject to
judicial review, although it is “technically advisory in nature.”
Id. at 966 n.2. We cited to an earlier case, City of Rochester v.
Bond, in which we explained that the FAA’s hazard/no hazard
determinations are final and “declaratory at least in the
commonly understood sense of formally ascribing legal
significance to facts.” 603 F.2d 927, 933 (D.C. Cir. 1979). The
FAA conducts such adjudications “with the intention that its
advice will affect the proposed construction.” Id (internal
quotation marks omitted). And indeed, the FAA’s
determination of whether a hazard exists “directly affects the
proceedings before other agencies.” Id. at 933 n.27. The
Federal Communications Commission, for example, relies on
the determinations in considering whether to grant a
construction permit to broadcasting companies. Id. Here, by
contrast, the NTSB ascribes no “legal significance” to the facts
it finds in determining the probable cause of the accident. The
agency does not intend that its determination will be relied
upon in other proceedings, and indeed the relevant statute and
regulations forbid such reliance. See 49 U.S.C. § 1154(b); 49
C.F.R. § 835.3. The NTSB’s report is only used within the
government in making decisions regarding the need for further
safety regulations.
Nor may we exercise jurisdiction to review the NTSB’s
denial of the petition for reconsideration. The reconsideration
procedure Joshi used is not created by any statute. It is the
result of a regulation that the NTSB promulgated to allow the
agency to receive new evidence after it completes an accident
investigation, ensuring that the agency develops safety
recommendations based on the most complete record possible.
As such, reconsideration petitions are simply another stage of
the accident investigation procedure and are not subject to our
8
review for the same reason we do not have jurisdiction to
review the Reports: neither the denial of the petition nor the
Reports impose any legal consequences. The NTSB’s denial of
Joshi’s petition for reconsideration differs from the Reports
only in that it represents the final step of the agency’s process
as it relates to the new evidence Joshi brought forth. Although
the response to Joshi’s petition is the “consummation of the
agency’s decisionmaking process” regarding Joshi’s evidence,
our precedent is not satisfied by this alone. Before we may
consider the agency’s action a final “order,” the action must
“determine rights or obligations or give rise to legal
consequences.” Safe Extensions, Inc., 509 F.3d at 598. It is at
this step of our analysis that Joshi’s argument falters. The
NTSB’s response “no more imposed legal obligations, fixed
rights, or altered a legal relationship” than did the initial
probable cause determination. Aerosource, Inc. v. Slater, 142
F.3d 572, 581 (3d Cir. 1998) (holding that the FAA’s refusal to
reconsider a decision did not constitute a final order when the
initial decision imposed no legal obligations); see also Gibson,
118 F.3d at 1315 (“[T]he NTSB’s denial of a petition for
reconsideration of a report . . . has no determinate
consequences and is not a ‘final order of the [NTSB]’ under 49
U.S.C. § 1153.”). We conclude that we may not review either
the Reports or the denial of Joshi’s petition for
reconsideration. 3 See 49 U.S.C. § 1153(a).
3
Because we conclude that we lack jurisdiction to review the
NTSB’s determinations, we need not and do not consider the
agency’s alternative argument that Joshi lacks standing. See
Baltimore Gas and Elec. Co. v. FERC, 252 F.3d 456, 461-62 (D.C.
Cir. 2001) (declining to consider standing after finding that the court
lacked jurisdiction on other grounds). In addition, Joshi seeks in this
proceeding to challenge the FAA’s role in the NTSB’s investigation.
But he asserts no independent basis for jurisdiction over that
challenge. Our conclusion as to § 1153 thus closes off the one
proffered avenue for jurisdiction over the FAA challenge as well.
9
III
For the foregoing reasons, we dismiss the petition for lack
of jurisdiction.