# THE WOLK LAW FIRM v. UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD

> District Court, E.D. Pennsylvania · October 10, 2019

URL: https://www.frixlaw.com/law-library/cases/10397757

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** October 10, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10397757

## How later opinions describe it (automated extraction)

- finding plaintiff “cannot seek relief under the APA because it never asserted an APA claim in its complaint,” notwithstanding reference to APA in statement of jurisdiction

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THE WOLK LAW FIRM a/k/a : CIVIL ACTION
Arthur Alan Wolk Associates :
:
v. :
:
UNITED STATES OF AMERICA :
NATIONAL TRANSPORTATION :
SAFETY BOARD : NO. 19-1401

MEMORANDUM OPINION

Savage, J. October 10, 2019
The Wolk Law Firm (Wolk), which represents aircraft accident victims and their
families, brings three claims against the National Transportation Safety Board (NTSB),
the agency responsible for investigating civil aviation accidents, for “obstruction of justice
and violation of due process,” violation of 49 C.F.R. § 837.4,1 and violation of the Freedom
of Information Act (FOIA), 5 U.S.C. § 552, for failure to provide materials requested. The
NTSB moves to dismiss the first two claims on the basis of sovereign immunity and failure
to state a claim.
Because we conclude that the NTSB enjoys sovereign immunity, we shall dismiss
the challenged claims.
Background
In the course of an investigation, the NTSB takes custody of wreckage and other
evidence, such as photographs, videos, notes and witness statements.2 Wolk has

1 Wolk’s Count II (mislabeled as Count III in the First Amended Complaint) is for violation of 14
C.F.R. § 837.4. No such C.F.R. exists. Wolk appears to bring its claim under 49 C.F.R. § 837.4, which
governs the NTSB’s production of non-public investigation materials.
2 First Amended Complaint (FAC) ¶ 11 (ECF No. 9).
requested investigative materials related to ten civil aviation accidents in which it
represents victims and their families.3 It also made a request under 49 C.F.R. § 837.4 for
wreckage relating to one of the accidents.4 The NTSB has refused or failed to produce
the requested materials.5

Invoking sovereign immunity,6 the NTSB moves to dismiss Wolk’s claims for
obstruction of justice and violation of due process and violation of 49 C.F.R. § 837.4.7 It
also argues that Wolk fails to state a claim for violation of due process because the rights
allegedly violated are statutory, not constitutional.8
Wolk responds that the Administrative Procedures Act (APA), 5 U.S.C. § 701 et
seq., establishes “a broad presumption in favor of judicial review of agency action”
notwithstanding the NTSB’s assertion of sovereign immunity.9 It maintains that the
NTSB’s withholding and destruction of evidence violates its Fifth, Seventh and Fourteenth
Amendment rights.10 It contends that 49 C.F.R. § 837.4 contemplates subject matter
jurisdiction over a claim under the regulation.11

In its reply, the NTSB points out that Wolk does not assert an APA claim in its First
Amended Complaint (FAC).12 Even if it did, the NTSB asserts the claim would fail

3 Id. pp. 20-26.
4 Id. p. 20.
5 Id. pp. 20-26.
6 Def.’s Memo. in Supp. of Mot. to Partially Dismiss Pl.’s FAC 5-9 (ECF No. 16).
7 It also separately moves to stay Wolk’s FOIA claim. Def.’s Mot. for a Stay Pursuant to 5 U.S.C.
§ 552(a)(6)(C) (ECF No. 17).
8 Id. 7.
9 Pl.’s Memo. in Supp. of Resp. to Def.’s Mot. to Partially Dismiss 16 (ECF No. 19).
10 Id. 14-15.
11 Id. 14.
12 Def.’s Reply in Supp. of Motion to Partially Dismiss Pl.’s FAC 4 (ECF No. 20).
because Wolk has an adequate remedy provided by FOIA and because Wolk has failed
to allege that the NTSB acted arbitrarily or capriciously in refusing to provide materials
not covered by FOIA.13 It also argues that an APA claim is premature because the NTSB
has not taken action that may be reviewed under the APA.14 The NTSB also contends
that there is no private right of action for obstruction of justice.15

Legal Standard
The standard of review of a motion to dismiss made pursuant to Rule 12(b)(1)
depends on whether the motion is a facial attack or a factual attack. See Constitution
Party of Pa. v. Aichele, 757 F.3d 347, 357-58 (3d Cir. 2014); Petruska v. Gannon Univ.,
462 F.3d 294, 302 n.3 (3d Cir. 2006). Consequently, we must distinguish between facial
attacks and factual attacks. A facial attack “is an argument that considers a claim on its
face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court”
because of some jurisdictional defect. Constitution Party, 757 F.3d at 358. In reviewing
a facial attack, as we do in considering a Rule 12(b)(6) motion, we accept the well-pleaded

allegations in the complaint as true and draw all reasonable inferences arising from them
in favor of the plaintiff. Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
2000).
A factual attack is “an argument that there is no subject matter jurisdiction because
the facts of the case...do not support the asserted jurisdiction.” Constitution Party, 757
F.3d at 358. In other words, in a factual challenge to jurisdiction, the defendant disputes
the allegations on which jurisdiction depends. In that instance, we need not accept

13 Id. 4.
14 Def.’s Reply in Supp. of Motion to Partially Dismiss Pl.’s FAC 6 n.4.
15 Id. 3.
plaintiff’s allegations as true and we may consider materials outside the complaint to
determine whether the exercise of federal jurisdiction is proper. CNA v. United States,
535 F.3d 132, 139, 145 (3d Cir. 2008).
The NTSB makes a facial challenge. It argues that the court lacks jurisdiction

because the NTSB enjoys sovereign immunity as to Wolk’s claims. Thus, we shall accept
as true the facts as they appear in the FAC and draw all possible inferences from those
facts in Wolk’s favor.
Analysis
Unless waived, sovereign immunity shields federal agencies from suit. F.D.I.C. v.
Meyer, 510 U.S. 471, 475 (1994). Sovereign immunity is a complete defense because it
divests the court of jurisdiction to hear the claim. See United States v. Bein, 214 F.3d
408, 412 (3d Cir. 2000).
Wolk contends that 49 C.F.R. § 837.1 waives the NTSB’s sovereign immunity
because it contemplates receipt by an NTSB employee “of a subpoena, order, or other

demand . . . by a court or other competent authority or by a private litigant.” 49 C.F.R. §
837.1(a). A government regulation alone cannot waive sovereign immunity. Heller v.
United States, 776 F.2d 92, 98 n.7 (3d Cir. 1985). The plaintiff must identify a statute that
unequivocally waives immunity. Clinton Cty. Comm’rs, 116 F.3d at 1021 (quoting United
States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992) (additional quotations omitted)).
Here, Wolk relies on 49 C.F.R. § 837.4. This regulation does not apply to actions against
the NTSB. It “sets forth procedures to be followed when requesting material for use in
legal proceedings (including administrative proceedings) in which the [NTSB] is not a
party . . . .” 49 C.F.R. § 837.1(a) (emphasis added).
Wolk invokes the APA, which provides an express waiver of sovereign immunity.
It permits a person “suffering legal wrong because of agency action, or adversely affected
or aggrieved by agency action within the meaning of a relevant statute” to bring an action
for non-monetary relief. 5 U.S.C. § 702.

To seek relief under the APA, the plaintiff must assert a claim under it. Clear Sky
Car Wash LLC v. City of Chesapeake, Va., 743 F.3d 438, 445 (4th Cir. 2014) (finding
plaintiff “cannot seek relief under the APA because it never asserted an APA claim in its
complaint,” notwithstanding reference to APA in statement of jurisdiction). In the FAC,
Wolk does not specifically invoke the APA. But, because he could do so in a second
amended complaint, we address the issue now in the interest of judicial economy and
efficiency.
Under the APA, “final agency action for which there is no other adequate remedy
in a court [is] subject to judicial review.” 5 U.S.C. § 704. The NTSB contends that an
APA claim would fail because Wolk has an adequate remedy provided by FOIA.16 Wolk

seeks “documents, data and evidence” under FOIA.17 His obstruction of justice and
violation of due process claim seeks these materials and “wreckage.”18 His 49 C.F.R. §
837.4 claim seeks “wreckage and videos” from the Bates-Cullen crash.19

16 The NTSB also “does not concede that each of its responses to plaintiff’s FOIA requests is final.”
Def.’s Reply in Supp. of Motion to Partially Dismiss Pl.’s FAC 6 n.4. According to Wolk, pending
administrative appeals of the NTSB’s denials of its FOIA requests remain pending only as to the Farrar,
Gentry, Gordon and Torres accidents. FAC pp. 20-26. The latest of these appeals was filed in April 2019.
FAC pp. 22. Because other grounds exist for refusing to allow an APA claim, we do not decide if the NTSB
has taken final action as to these requests.
17 Id. p. 32 (“WHEREFORE” clause).
18 Id. p. 28 (“WHEREFORE” clauses).
19 Id. p. 29 (“WHEREFORE” clauses).
FOIA provides for the production of “records.” 5 U.S.C. § 552(2)(D). “For purposes
of the FOIA, the term ‘records’ does not include tangible objects.” Friedman v. U.S. Secret
Serv., 923 F. Supp. 2d 262, 275 (D.D.C. 2013). Records include videos, but cockpit
videos are exempt from production.20 49 U.S.C. § 1114(c)(1). As Judge Robreno noted

in a similar action, “wreckage itself cannot be the subject matter of a FOIA request
because it is not an ‘agency record’ that could be subject to FOIA.” Wolk Law Firm v.
U.S. of Am. Nat’l Transp. Safety Bd., No.2:16-cv-05632, 2019 WL 2516054, at *9 (E.D.
Pa. June 18, 2019). Because FOIA does not provide an “adequate remedy” to obtain
cockpit videos and wreckage, an NTSB refusal to provide these materials is subject to
judicial review.
A court may only compel the NTSB to produce these materials if its withholding of
them was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law[.]” 5 U.S.C. § 706(2)(A). This standard “is narrow, and a court is not to substitute
its judgment for that of the agency.” CBS Corp. v. F.C.C., 663 F.3d 122, 137 (3d Cir.

2011) (citing Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983)). An agency’s action is arbitrary and capricious where it
has relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view
or the product of agency expertise.
Id. (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).
Hence, a court may reverse an agency’s decision only if it is not supported by substantial

20 Wolk does not specify whether the “videos” it seeks include cockpit footage. It also submits its
request for materials from the Bates-Cullen crash pursuant to 49 C.F.R. § 837, not FOIA. Id. p. 20.
evidence or the agency made a clear error in judgment. Prometheus Radio Project v.
F.C.C., 373 F.3d 372, 390 (3d Cir. 2004) (citation omitted).
Judicial review is limited to the administrative record. Concerned Citizens Alliance,
Inc. v. Slater, 176 F.3d 686, 693 (3d Cir. 1999). Wolk attached to the FAC its requests

for materials and the NTSB’s responses. Although Wolk’s obstruction of justice and
violation of due process claim seeks wreckage of all the crashes referenced in the
complaint, Wolk’s request to the NTSB sought wreckage of only the Bates-Cullen crash.21
Further, Wolk’s request relating to the Bates-Cullen crash references only wreckage, not
videos.22
The NTSB’s refusal to produce the cockpit videos was not arbitrary, capricious or
an abuse of discretion. Cockpit videos are statutorily exempt. 49 U.S.C. § 1114(c)(1).
On the face of the exhibits attached to the FAC, the NTSB’s response to the
request for wreckage was not arbitrary and capricious. The NTSB noted that it has
exclusive authority to inspect aircraft crash wreckage.23 See 49 U.S.C. § 1134. It

explained that pursuant to this authority it needed the wreckage “for further testing as
necessary” while continuing its investigation.24 However, the NTSB assured Wolk that it
would preserve all evidence related to the crash, consistent with the requirements of its
investigation.25 It reminded Wolk that the results of its investigation would be released
publicly at the conclusion of its investigation.26

21 See generally id. Ex. A (ECF No. 9-1).
22 Id. Ex. A at 2-3.
23 Id. Ex. A at 9.
24 Id.
25 Id.
26 Id.
With respect to its obstruction of justice claim, Wolk has not identified a federal
common law or statutory basis. Nor have we found any. Title 18, Chapter 73 of the
United States Code establishes “Obstruction of Justice” crimes. 18 U.S.C. § 1501 et seq.
It also creates two civil causes of action, one to restrain harassment of victims and

witnesses, and the other to protect whistleblowers. Id. §§ 1514-1514a. Neither applies
here.
This claim also asserts “a violation of Due Process under state and Federal
Constitution and laws.”27 In its brief, Wolk claims that the NTSB violated its Fifth
Amendment property rights, Seventh Amendment right to a jury, and Fourteenth
Amendment due process rights.
Wolk cannot make out a claim under the Fourteenth Amendment. The Fourteenth
Amendment applies only to the states. B & G Constr. Co., Inc. v. Dir., Office of Workers’
Comp. Progs., 662 F.3d 233, 246 n.14 (3d Cir. 2011) (citations omitted) (emphasis
added). It does not apply to the federal government. Id.

The Fifth Amendment prohibits the deprivation of property without due process of
law. U.S. CONST. amend. V. To state a claim for a Fifth Amendment violation, the plaintiff
must have a legally cognizable property interest that is affected by the government’s
action. Prometheus Radio Project v. F.C.C., 373 F.3d 372, 428 (3d Cir. 2004) (citing
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985)). The Fifth Amendment
does not create property interests. It protects property interests created and defined by
“statutes, legal rules, or mutually explicit understandings . . . .” Matter of Roberts, 682
F.2d 105, 107 (3d Cir. 1982) (citing Leis v. Flynt, 439 U.S. 438, 441 (1979)) (additional

27 FAC p. 28 (“WHEREFORE” clause).
citation omitted). Wolk has not cited any statutory or other basis to support his claim of a
denial of a property right. Absent any established property right, there can be no
deprivation giving rise to a claim.28 See id. Hence, the Fifth Amendment claim must be
dismissed.

The Seventh Amendment provides for trial by jury. U.S. CONST. amend. VII. We
cannot discern how the Seventh Amendment is implicated. Even when Congress has
waived the government’s sovereign immunity, it has provided plaintiffs the right to a
nonjury trial only. Lehman v. Nakshian, 453 U.S. 156, 161 (1981). The APA does not
provide a right to a jury trial. W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116,
1123 (9th Cir. 2009).
Conclusion
The NTSB enjoys sovereign immunity. Even if it did not, Wolk fails to state claims
for obstruction of justice, violation of due process or violation of 49 C.F.R. § 837.4.
Therefore, we shall grant the NTSB’s motion to dismiss.

28 To the extent that Wolk bases its Fifth Amendment claim on the alleged FOIA violations, it fails.
“[B]ecause of the comprehensive scheme which FOIA establishes, including the availability of appropriate
injunctive relief, federal courts have held that due process deprivations cannot be premised on an alleged
FOIA violation.” N’Jai v. U.S. Envtl. Prot. Agency, No. 13-1212, 2014 WL 2508289, at *19 (W.D. Pa. June
4, 2014) (citing Johnson v. Exec. Office for U.S. Attys., 310 F.3d 771, 777 (D.C. Cir. 2002)) (additional
citations omitted).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10397757. Public record. Not legal advice.