Joshi Ex Rel. Estate of Joshi v. National Transportation Safety Board

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.

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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.

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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

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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.

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III

For the foregoing reasons, we dismiss the petition for lack

of jurisdiction.