Creed v. National Transportation Safety Board ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DONALD CREED,
Plaintiff,
v.
Civil Action 10-01630 (HHK)
NATIONAL TRANSPORTATION
SAFETY BOARD,
Defendant.
MEMORANDUM OPINION
Donald Creed brings this action against the National Transportation Safety Board
(“NTSB” or “agency”), alleging violations of the Administrative Procedure Act (“APA”),
5 U.S.C. § 701 et seq., the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., and the
Privacy Act, 5 U.S.C. § 552a et seq. Creed, a commercial truck driver, asserts that the NTSB
acted unlawfully when it posted summaries of Creed’s medical information, which it had
obtained while investigating a serious multi-vehicle accident in which he was involved, on its
public website. On September 27, 2010, this Court entered a temporary restraining order
(“TRO”) requiring the NTSB to remove that information from its website [#4]. On October 29,
after considering Creed’s motion for a preliminary injunction and the NTSB’s motion to dismiss,
the Court issued an order transferring this case to the United States Court of Appeals for the
District of Columbia Circuit [#15]. This memorandum sets forth the rationale for the Court’s
order.
I. BACKGROUND
On June 26, 2009, Creed, while driving a tractor-trailer truck owned by his employer, was
involved in a multi-vehicle highway collision in which ten people were killed. In light of the
accident’s magnitude, the NTSB initiated an investigation to determine its probable cause.1
During the investigation by the NTSB staff, the NTSB’s medical officer, Dr. Mitchell A. Garber,
reviewed Creed’s medical records and prepared a summary of information drawn from the
records that he concluded were pertinent to the investigation. This summary was posted as an
exhibit on the NTSB’s public docket of the accident investigation, located on the agency’s public
website. A NTSB report on the accident which also included a summary of Creed’s pertinent
medical information, was posted as another exhibit on the public docket. As a part of its
investigative process, the NTSB scheduled a public meeting of its five Board members for
September 28, 2010 to review the NTSB staff’s investigation into the probable cause of the
accident and to consider safety recommendations that could help prevent a similar event in the
future.
When Creed became aware that documents containing his medical information had been
made publicly available on the NTSB’s website, he requested through his attorney that those
documents be removed. By a letter dated September 24, 2010, from the NTSB General Counsel
to Creed’s attorney, the NTSB denied the request. See Pl.’s Mot. for Prelim. Inj., Ex. C. The
NTSB expressed its position that disclosure of the relevant medical information was necessary to
the NTSB’s performance of its statutory duties and that disclosure was not prohibited by the
1
The NTSB is an independent federal agency charged with determining the
probable cause of transportation accidents and promoting transportation safety. The NTSB is
headed by five presidentially-appointed Board members.
2
Privacy Act or FOIA. Id. at 2.
The same day, Creed initiated this action and filed a motion for a TRO seeking to require
the NTSB to remove the documents from its website and prevent disclosure of his medical
information at the September 28, 2010 public meeting of the NTSB Board members. In addition
to asserting that public disclosure of his information violated FOIA and the Privacy Act, Creed
explained in his motion that he and his employer were defendants in a lawsuit arising from the
accident and that the plaintiffs in that lawsuit had been denied discovery regarding his medical
records. The denial of discovery regarding his medical records was set forth in an order issued
by the Oklahoma Supreme Court, see Pl.’s Mot. for Prelim. Inj., Ex. A, and Creed feared that the
attorneys for the plaintiffs would access his medical information publicly disclosed by the
NTSB.2
On September 27, this Court granted Creed’s motion in part, ordering the temporary
removal of the information from the NTSB’s public docket, and denied the motion in all other
respects [#4]. The same day, Creed, through his attorney, made written objection to the public
disclosure of Creed’s medical information and requested that the NTSB either refrain from
discussing his medical information at the Board’s public meeting or close the meeting to the
public when such information was discussed. The five Board members voted unanimously not to
close any portion of the meeting. In a letter dated September 28, the NTSB General Counsel
informed Creed’s attorney of the Board’s decision to deny Creed’s requests. See Def.’s Mot. to
2
When Creed filed his application for a TRO and a preliminary injunction, he and
his employer were defendants in a civil lawsuit in the Cleveland County District Court of
Oklahoma; that litigation subsequently settled. He remains a defendant in a suit pending in the
U.S. District Court for the Northern District of Oklahoma. Pl.’s Reply Mem. in Support of Mot.
for Prelim. Inj. and in Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Reply”) at 2–3.
3
Dismiss (“Def.’s Mot.”), Ex. A. The letter stated the NTSB’s position that, consistent with FOIA
and the Government in the Sunshine Act, 5 U.S.C. § 552b et seq., the public interest in Creed’s
medical information relevant to the NTSB’s investigation outweighed Creed’s asserted privacy
interest. Id. at 2, 7.
At the public Board meeting on September 28, the NTSB determined that the probable
cause of the accident was Creed’s fatigue, caused by acute sleep loss, circadian disruption
associated with his work schedule, and mild sleep apnea. Def.’s Mot. at 3 (citing Press Release,
NTSB (Sept. 28, 2010), http://www.ntsb.gov/Pressrel/2010/100928.html). The NTSB also made
a number of safety recommendations based on its findings. Id.3
II. ANALYSIS
Creed raises two claims based on the NTSB’s disclosure of his medical information.
First, he asserts a “reverse FOIA” claim under the APA, alleging that the NTSB’s actions were
an arbitrary and capricious exercise of agency authority and not in accordance with Exemption 6
of FOIA, 5 U.S.C. § 552(b)(6), or the NTSB’s own regulations, 49 C.F.R. § 801.56 and 49
3
These safety recommendations include recommendations to the Federal Motor
Carrier Safety Administration (“FMCSA”) to require all heavy commercial vehicles to be
equipped with video event recorders, improve its fatigue educational materials and to require all
motor carriers to adopt a specific fatigue management program; to Creed’s employer, Associated
Wholesale Grocers, Inc., to create a comprehensive fatigue management program; and to the
National Highway Traffic Safety Administration (“NHTSA”) to set performance standards for
event data recorders. The NTSB also reiterated various previously issued safety
recommendations, including: deployment of technologies in commercial vehicles to reduce
fatigue-related accidents; assessment of the effectiveness of fatigue management plans
implemented by motor carriers; and assessment of whether collision warning systems with active
braking and electronic stability control in commercial vehicles would reduce accidents.
4
C.F.R. § 801.10(i).4 Second, he claims that the disclosures violated the Privacy Act. He seeks a
preliminary injunction to prevent the NTSB from (1) re-publishing the documents containing his
medical information; and (2) including his medical information in its final report on the accident.
The NTSB responds that Creed cannot prevail on the merits of these claims and is not
entitled to injunctive relief. It further asserts, however, that this Court is without jurisdiction to
entertain Creed’s claims because the Independent Safety Board Act, codified at chapter 11 of
U.S. Code title 49 (“the Act” or “chapter 11”), vests exclusive jurisdiction over this case in the
U.S. Court of Appeals for the District of Columbia Circuit. Thus, as a threshold matter, the
Court must address whether it has jurisdiction over Creed’s claims.
The Act’s judicial review provision, section 1153(a), provides in relevant part: “The
appropriate court of appeals of the United States or the United States Court of Appeals for the
District of Columbia Circuit may review a final order of the National Transportation Safety
Board under this chapter.” 49 U.S.C. § 1153(a). Determining whether section 1153(a) precludes
this Court from hearing Creed’s case thus requires the resolution of two questions: would
disposing of Creed’s claims involve a “review [of] a final order of the [NTSB] under” chapter
11? And, if so, is the jurisdiction created by section 1153(a) exclusive to the courts of appeals?
The Court now turns to these questions, answering both in the affirmative.
4
Under Chrysler Corp. v. Brown, 441 U.S. 281 (1979), a party may seek judicial
review under the APA of an agency’s disclosure of information when that disclosure is
“‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Id. at
317 (quoting 5 U.S.C. § 706(2)(A)).
5
A. Adjudication of Creed’s Claims Would Require Review of Final NTSB Orders
Under Chapter 11
The NTSB asserts that its denials of Creed’s requests to prevent the public disclosure of
his medical information constitute final orders pursuant to the Act, such that any judicial review
of those denials would fall squarely within the language of section 1153(a). Creed makes
multiple responses. First, he asserts that section 1153(a) is intended to reach only those claims
that challenge the merits of the NTSB’s probable-cause determinations and safety
recommendations or that attack the processes by which those decisions are reached. Pl.’s Reply
at 5. By contrast, his own claims, as he sees them, do not seek to influence the NTSB’s
decisionmaking process or restrict the universe of information that it may consider during that
process. Thus, Creed argues, his claims do not seek review of NTSB action “under [chapter 11]”
within the meaning of section 1153(a); rather, they arise “under other ‘chapters’ of the U.S.
Code.” Id. at 6. This argument, however, relies on too narrow an understanding of the NTSB’s
statutory obligations.
Under the Act, the NTSB is mandated to “investigate . . . and establish the facts,
circumstances and cause or probable cause of . . . a highway accident . . . [that] the Board selects
in cooperation with a State.” 49 U.S.C. § 1131(a)(1)(B). Further, the NTSB must “report on the
facts and circumstances of each accident investigated by it” and “shall make each report
available to the public at reasonable cost.” Id. § 1131(e) (emphasis added). Specifically,
“[u]pon completion of an accident investigation,” NTSB investigators must “complete a factual
report with supporting documentation and include these items in the public docket for the
investigation.” 49 C.F.R. § 801.30 (emphasis added). The NTSB’s decisions about which facts
6
to publicly document are thus central to its investigative duties as mandated by Congress.5
Accordingly, despite his assertions to the contrary, Creed’s claims challenging the NTSB
decisions to disclose his information are direct challenges to the manner in which the NTSB
discharges its statutory duties under the Act. Cf. Chiron v. NTSB, 27 F. Supp. 2d 257, 259
(D.D.C. 1998) (holding that section 1153(a) gave the courts of appeals “jurisdiction to review
NTSB matters relating to its investigation” of an aircraft fire); Seminole Pipeline Co. v. Vogt, 794
F. Supp. 438, 441 (D.D.C. 1992) (holding that section 1153(a)’s predecessor gave the courts of
appeals “jurisdiction over challenges to any NTSB regulations and orders which have arisen, or
which will arise, from the investigation of [a pipeline] accident”).
The fact that Creed’s complaint presents causes of action based on the APA and the
Privacy Act rather than chapter 11 itself does not alter this conclusion. Section 1153(a) grants
the courts of appeals jurisdiction to review “a final order of the [NTSB] under this chapter.” The
provision’s scope thus turns expressly on whether the order in question, rather than the claim
challenging it, was made “under this chapter.” Because, as described above, the decisions that
Creed challenges were made during the NTSB’s discharge of its statutory duties, those decisions
5
Further, the D.C. Circuit has held that claims need not implicate the core of an
agency’s statutory mission to be subject to a statutory review provision. In City of Rochester v.
Bond, 603 F.2d 927 (D.C. Cir. 1979), appellants challenged both the Federal Aviation
Administration’s determination that a proposed radio tower posed “no hazard” and the Federal
Communications Commission’s grant of a construction permit for the tower on the basis that the
agencies allegedly had violated the National Environmental Policy Act by failing to prepare
environmental impact statements. Id. at 931. Appellants asserted that, because of the nature of
their claims and because they were not parties to the agency proceedings, their claims were too
“peripheral . . . to be confined to the [relevant] special statutory review provisions.” Id. at 936.
The D.C. Circuit dismissed this argument out of hand, declining the appellants’ invitation to
limit the special review statutes’ reach to claims “going to the substantive core of an agency’s
mandate.” Id. at 936–37.
7
were made “under” chapter 11. Consequently, Creed’s reliance on causes of action brought
under other statutes does not place his suit beyond the reach of section 1153(a). See Chiron, 27
F. Supp. 2d at 260–61 (holding that, where section 1153(a) applied, the APA could not confer
jurisdiction on the district court); Seminole Pipeline Co., 794 F. Supp. at 440 (holding that, under
section 1153(a)’s predecessor, the district court did not have jurisdiction over constitutional or
APA challenges to an NTSB order); cf. City of Rochester v. Bond, 603 F.2d 927, 936–37 (D.C.
Cir. 1979) (holding that the specific substantive ground alleged is irrelevant to the application of
a special statutory review provision and instead “all issues concerning the lawfulness of an order
subject to statutory review must be raised within the statutory proceeding if that remedy is
otherwise adequate” (emphasis added)).6
Creed is also not aided by the line of cases that have allowed district courts to retain
jurisdiction over claims that are not “inescapably intertwined” with the review of orders that can
only be challenged in the courts of appeals. See Pl.’s Reply at 6–7 (citing cases); see also
Merritt v. Shuttle, Inc., 245 F.3d 187 (2d Cir. 2001); Breen v. Peters, 474 F. Supp. 2d 1, 4
(D.D.C. 2007). Under those cases, for example, a district court has jurisdiction over a pilot’s
negligence action under the Federal Tort Claims Act (“FTCA”) against Federal Aviation
Administration employees for denying him medical certificates, even though the denial itself
6
The Privacy Act’s grant of original jurisdiction to the district courts, 5 U.S.C. §
552a(g)(1), does not change this conclusion. The D.C. Circuit has adopted the rule that “where
an agency order arising from a common factual background and addressing a common question
of law relies on two statutory bases that give rise to separate paths for judicial review, the entire
order should be reviewed in a comprehensive and coherent fashion, and that review should take
place in the court of appeals.” Shell Oil Co. v. FERC, 47 F.3d 1186, 1195 (D.C. Cir. 1995)
(citing Suburban O’Hare Comm’n v. Dole, 787 F.2d 186, 192 (7th Cir. 1986)). Therefore,
despite the Privacy Act’s grant of jurisdiction to the district courts, section 1153(a) still governs
the judicial review of Creed’s claims.
8
could, pursuant to a special review statute, only be reviewed by the court of appeals. See Beins v.
United States, 695 F.2d 591, 597 (D.C. Cir. 1982). This result is justified by the fact that the
court of appeals, in reviewing the denial itself under the special review statute, could neither hear
the FTCA claim nor award the plaintiff damages for negligence. Id. at 598 n.11. Thus, these
cases essentially allow for district court jurisdiction over claims that are extrinsic to the agency
decision itself and thus would be beyond the scope of the court of appeals’ review of that
decision. Here, however, that is not the case: because the NTSB had the authority to grant the
relief that Creed now seeks, but decided not to, a review of that decision by the court of appeals
would reach all of Creed’s claims. See Merritt, 245 F.3d at 188 & n.9; Breen, 474 F. Supp. 2d at
5. Put another way, Creed raises no claims that are extrinsic to the agency decisions he
challenges such that they would not be captured by the court of appeals’ review thereof.
Accordingly, Creed’s argument that his claims are not “inescapably intertwined” with the review
of the NTSB decisions at issue must fail.
Next, Creed asserts that the letters from the NTSB General Counsel denying his requests
to maintain the privacy of his medical information did not constitute “final orders,” because they
post-dated the NTSB’s decision to include Creed’s information in the public docket. Thus, he
avers, even if section 1153(a) otherwise applies, adjudication of his claims would not require the
Court to “review a final order” of the NTSB under chapter 11. Pl.’s Reply at 7. This argument is
unavailing.
Because the Act does not define “order,” the Court uses the APA’s definition of the term,
Watts v. SEC, 482 F.3d 501, 506 (D.C. Cir. 2007), which provides that an “order” is “the whole
or part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of
9
an agency in a matter other than rule making but including licensing.” 5 U.S.C. § 551(6). The
Supreme Court has interpreted the term “final disposition” to require “some determinate
consequences for the party to the proceeding.” Int’l Tel. & Tel. Corp., Commc’ns Equip. & Sys.
Div. v. Local 134 Int’l Bhd. of Elec. Workers, 419 U.S. 428, 443 (1975). In other words, “[t]o be
deemed ‘final,’ an order must mark the ‘consummation’ of the agency’s decisionmaking process,
and must determine ‘rights or obligations’ or give rise to ‘legal consequences.’” City of Dania
Beach, Fla. v. FAA, 485 F.3d 1181, 1187 (D.C. Cir 2007) (quoting Bennett v. Spear, 520 U.S.
154, 177–78 (1997)).
Under this standard, the NTSB General Counsel’s letters constituted final orders.7 The
letters were conclusive determinations of the issues raised by Creed’s requests. They were not
tentative, advisory, or interlocutory. The decisions recorded in these letters created definitive
consequences for Creed by allowing public access to his medical information. The fact that these
decisions were communicated to Creed via letter does not change this conclusion. See
Aerosource, Inc. v. Slater, 142 F.3d 572, 577 (3d Cir. 1998) (“[L]etters and other
communications can be final orders depending upon the surrounding circumstances and other
indicia of finality . . . .”); see also City of Dania Beach, 485 F.3d at 1188 (finding an FAA letter
to be a final order); Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 433–37 (D.C. Cir. 1986) (reversing
a district court determination that an agency had not issued a final order or taken final agency
7
The letters denying Creed’s requests are not dissimilar from the order at issue in
Chiron v. NTSB. There, the court found the NTSB’s denial of the plaintiffs’ petitions for the
release of cargo information from the NTSB’s investigation to be an NTSB order within the
meaning of section 1153(a). Chiron, 27 F. Supp. 2d at 261. By assuming jurisdiction over the
case, the D.C. Circuit indicated its agreement with the district court’s conclusion. Chiron Corp.
& PerSeptive Biosys., Inc. v. NTSB, 198 F.3d 935 (D.C. Cir. 1999) (dismissing the case on other
grounds).
10
action where the agency had sent letters advising pesticide manufacturers of required labeling
changes).
Creed nevertheless asserts that the General Counsel’s letters were not final orders because
they post-dated the NTSB’s decision to publicly disclose his medical information. Thus, he
avers, the letters were not orders but rather post hoc rationalizations of the agency’s original
decision to disclose his information.8 Pl.’s Reply at 7. The Court cannot agree. The General
Counsel’s letter documenting the agency’s refusal to remove Creed’s information from the public
accident docket communicated to Creed that the NTSB had decided to uphold its original
decision to make that information public. Consequently, that letter constituted the culmination of
the agency’s decisionmaking process as to how to treat Creed’s medical information and
represented the agency’s final determination of both its own and Creed’s rights with regard to
that information. Creed cannot characterize his claims as challenging the NTSB’s original
decision to make his medical information public but not the General Counsel’s letter upholding
that decision; such logic would permit plaintiffs to challenge only antecedent decisions or
interlocutory orders — even where subsequent final orders exist — in order to escape the reach
of special judicial review statutes like section 1153(a).
Finally, adjudicating Creed’s claims would involve a “review” of the decisions recorded
in the letters sent by the General Counsel to Creed’s attorney. Creed asserts that those decisions
8
Creed’s argument that the letters only reflect post hoc rationalizations of the
NTSB’s decisions does not appear to apply to the NTSB’s September 28, 2010 letter refusing to
close the agency’s hearing to the public during any discussion of Creed’s medical information.
This letter appears to have predated the hearing (although perhaps only by hours) and clearly
evidences decision-making that predated the hearing, including a vote of the NTSB Board
members.
11
were made in contravention of the APA, the Privacy Act, FOIA, and the NTSB’s own
regulations. To resolve these claims, the Court would plainly have to review the correctness of
the NTSB’s decisions (which the NTSB itself justified as consistent with those laws and its own
statutory mandate). Accordingly, Creed’s claims fall within the scope of section 1153(a): the
letters from the NTSB General Counsel were final orders; those orders reflected decisions made
pursuant to the NTSB’s statutory mandate to investigate crashes; and resolution of Creed’s suit
would require a review of those decisions. Thus, the Court must determine whether the
jurisdiction created by section 1153(a) is exclusive.
B. The Jurisdiction Created by Section 1153(a) is Exclusive.
Section 1153(a) itself is silent as to whether it vests exclusive or concurrent jurisdiction
over NTSB orders in the courts of appeals. The D.C. Circuit has held, however, that if a special
statutory review procedure exists, courts should presume that Congress intended that review to
be exclusive. City of Rochester, 603 F.2d at 931; see also Telecomm. Research & Action Ctr. v.
FCC, 750 F.2d 70, 77–78 (D.C. Cir. 1984) (“By lodging review of agency action in the Court of
Appeals, Congress manifested an intent that the appellate court exercise sole jurisdiction over the
class of claims covered by the statutory grant of review power.”). The same rationale applies to
section 1153(a). See Chiron, 27 F. Supp. 2d at 258 (holding that, under section 1153(a), the
courts of appeals have exclusive jurisdiction to review NTSB matters related to agency
investigations); Seminole Pipeline, 794 F. Supp. at 440–41 (holding that section 1153(a)’s
predecessor granted exclusive jurisdiction to the courts of appeals to adjudicate challenges to
NTSB orders). Accordingly, the courts of appeals have exclusive jurisdiction over Creed’s
claims.
12
C. Transfer of the Case to the U.S. Court of Appeals for the District of Columbia
Circuit.
Because this case falls within the reach of section 1153(a), and because that provision
vests exclusive jurisdiction in the courts of appeals, this Court lacks jurisdiction to hear this case.
The NTSB’s impending publication of its final accident report, however, suggests that this case
should be decided expeditiously. Further, it would serve “no useful purpose” to force Creed to
“start over.” Air Line Pilots Ass’n v. Civil Aeronautics Bd., 750 F.2d 81, 84 (D.C. Cir. 1984).
Accordingly, the Court finds that it serves the interests of justice to transfer this case to the
United States Court of Appeals for the District of Columbia Circuit pursuant to 28 U.S.C. § 1631and 49 U.S.C. § 1153(a).
III. CONCLUSION
For the foregoing reasons, the Court transferred this case to the United States Court of
Appeals for the District of Columbia Circuit pursuant to 28 U.S.C. § 1631 and
49 U.S.C. § 1153(a).
Henry H. Kennedy, Jr.
United States District Judge
13