Opposition Brief — Graham v. Teledyne-Continental Motors

| BILLED

>) | MAY 11 wer

No. 86-1614 ‘HOSEPH E. SPANIOL, JR,

IN THE

Supreme Court of the United States

OCTOBER TERM. 1986

DOROTHY A. GRAHAM, as The Executrix of

The Estate of James M. Graham, Deceased,

Petitioner,

vs.

TELEDYNE-CONTINENTAL MOTORS, a Division

of TELEDYNE INDUSTRIES, INC., and THE

NATIONAL TRANSPORTATION SAFETY BOARD,

Respondents.

ON PETITION

FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

JACQUES E. SOIRET’

MICHAEL L. KELLY

BRUCE G. SHANAHAN

KIRTLAND & PACKARD

Tenth Floor

626 Wilshire Boulevard

Los Angeles, CA 90017

(213) 624-0931

Attorneys for Respondents

“Counsel of Record

Lawyers Brief Service / Legal Publishers / (213) 383-4457 / (714) 720-1510

ry

T

QUESTIONS PRESENTED

1. Whether the Court of Appeals for the Ninth Circuit’s

affirmation of the district court’s denial of plaintiff’s/

petitioner’s injunction barring the National Transportation

Safety Board from conducting an aircraft accident

investigation is in conflict with other jurisdictions or of such

importance as to require this Court’s review.

2. Whether the Court of Appeals for the Ninth Circuit’s

interpretation of 49 C.F.R. Subsection 831.9(a) and

Subsection 831.10(a) as permitting the National Transpor-

tation Safety Board to exclude from participating or

observing aircraft accident investigations, those who are

neither authorized nor who would add to the investigation is

in conformance with the National Transportation Safety

Board’s congressional safety mandate.

3. Whether the Court of Appeals for the Ninth Circuit

appropriately determined that a civil litigant’s right to

indemnification and/or contribution are not significantly

impacted by the discretionary exclusion of its retained

expert by the National Transportation Safety Board from

the Board’s investigation.

TABLE OF CONTENTS

Page

Questions Presented

Neen ee nooo eescnsesubinenesssabacsssecihhsneenness i

cscs cupneminnducenspennosanesonsonnencass iv

Brief in opposition to petition for writ of certiorari ............ 1

Constitutional, statutory, and regulatory provisions

io cna cinasnsvnsannapransecuionncnsosavinevades 2

a ssndenavnsneensanssessanseausnesvnns 2

I I ON osc nsnnncrscssanstnassecenssevensssaasecsoues 5

I The issues involved in this matter do not meet

the criteria for this Courts review. ..................ssssseseseees 5

A. The Court of Appeals for the Ninth

Circuit’s decision does not conflict with

prior federal court of appeals decisions. ............... 5

1. The Court of Appeals for the Ninth

Circuit has properly interpreted the

discretionary provisions of 49 C.F.R.

Section 831.9(a) and Section

isin cal cgisi cahgniesekiaengeahincanceisnvecsouns 5

ae oe

Page

B. The Court of Appeals for the Ninth

Circuit’s decision is in conformity with the

safety mission, purpose and requirements

of the National Transportation Safety

Board and does not require intervention by

this court to produce settled law on an

issue of national importance. ..............c::ceseceeeeeeeeees 7

1. The pertinent NTSB regulations were

properly promulgated to promote the

investigation of the facts, conditions,

circumstances and causes of any

IIE Is Gikcicniteescetiipinntmantennatnnieds 8

2. Fulfillment of the above mission

precludes participation in NTSB acci-

dent investigations by personnel who

cannot add unique, specialized knowl-

UR GE CIE. srseesrsinipicrnncsiiccenisiioncgniotinenavnces 9

II Petitioner has failed to demonstrate any

constitutional right that should override the

NTSB’s safety function or mission. ..................00000008 12

A. The Court of Appeals for the Ninth

Circuit’s decision appropriately determines

that there is no significant detriment to

petitioner’s right to contribution or indem-

SIs. sinscatiaek lass pansnsncdecadianninbecsiadenestiadiininiacddele 12

—1li—

Page

B. The Tucker Act provides Petitioner with

an appropriate remedy should there be a

resultant taking of property. .............ccccccceeeeeeee 14

CIO tesiiersssatcachstnamndnaiaintianebecuiaiensinckeasnacsenaniietieciaan 16

—

TABLE OF AUTHORITIES

Page

Cases

Aerospace Mianagement International v. National —

Transportation Safety Board

$5-108D (D.C.Cir., Feb. 13, 1985) ...cccccrccccccescceceseee 7

Aerospace Milanagement International v. National

Transportation Safety

85-1428 (D.C.Cir., July 25, 1985) oe 7

Air East, Inc.,, v. NTSB

512 F.2d. 1227, 1231 (3d. Cir.),

cert. denied, 96 S.Ct. 122,

423 U.S. 863, 46 L.Ed.2d 92 (1975) ........... 12

American Airlines, Inc. v. United States

418 F.2d 180 (Sth Cir., 1959) oo... sssiciinid 13

Berguido v. E:astern Airlines, Inc.

317 F.2d 628, 631 (3rd Cir., 1962),

cert. denied, 84 S.Ct. 170, 375 US. 895,

OR ie CO CID eevssctssrsnstrcesannssectinessapnnaninaes 13

Exxon Corp. w. Wisconsin Dept. of Revenue

100 S.Ct. 2109, 2118, 447 U.S. 207,

i SE CRIME scinerscrsnecncvexenntnncsnactinnvetinpnentets 7

Kline v. Martin

345 F.Supp. 31 (E.D. VA, 1972) oo... 13

Page

Lobel v. American Airline, Inc.

> 2 Biv ie Ae, | ;) eee 13

McGowan v. Maryland

81 S.Ct. 1101, 366 U.S. 420,

eee: Ue ED Steapictcessscsintisenciniecentansenestons 12

Miami Herald Publishing Company v. City of

Hallandale

Oe ee Oe ne ee 13

Parker v. Flood

98 S.Ct. 2522, 2524, 437 U.S. 584,

Pe ee. PR OUD cecennestsnccninesacssnnsmerantnnnsiabsaieninin 7

Tanner v. McCall

441 F.Supp. 503 (1977) modified in part

ee a PUI heciresessenineeeceneicebvciesinsiteceonsaeeniennsioe 12

United States v. Dickens

I) rc © i cseciuniuendaueeiaiiies 12

United States v. Lynch

ge om Te eS ol OD. : Reena 10

United States v. Martorano

620 F.2d. 912 (ist Cir., 1980),

cert. denied, 101 S.Ct. 356, 449 U.S. 952,

Bh ee a: hy. jee 10

a ve

Page

United Steel Workers of America v. Sadlawski

102 S.Ct. 2339, 437 U.S. 102,

Se S fee ipbinseideataliata 12

Statutes and Regulations

49 C.F.R:

RIE SITTIN “cischvessihnnsnieinctnsepicitindinideniasiiemnemvniaeesionn 2, 5

i a 3

I 2, 13

IRC cen ONC eR Se 2, 13

49 U'S.C.:

I a 2

RE SR nates AAR NR Te Se MT 2

NE FI a caeinauanaiacead 2, 9

UE TLD CEGIED ccceescciccccccccsncccenncsecansnn 2, 10

UNIT TRI Setar aeinetens cao oe 2

Other Authorities

NTSB’s Investigation Manual, NTSB Order 6200.1

A, Investigation Manual-Aircraft Accidents,

FT SEE ar HORT De ee 10

United States Supreme Court Ruie 17(a) ....000..000000ccccceeeeee 7

No. 86-1614

IN THE

Supreme Court of the United States

October Term 1986

DOROTHY A. GRAHAM, as The Executrix of

The Estate of James M. Graham, Deceased,

Petitioner,

vs.

TELEDYNE-CONTINENTAL MOTORS, a Division

of TELEDYNE INDUSTRIES, INC., and THE

NATIONAL TRANSPORTATION SAFETY BOARD,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO: The Honorable Chief Justice and Associate Justices of

the Supreme Court of the United States

Respondent, Teledyne Continental Motors, aircraft

products division, a division of Teledyne Industries, Inc.,

respectfully requests that this court deny the Petition for

Writ of Certiorari seeking review of the judgment and

opinion of the United States Court of Appeals for the Ninth

Circuit, decided and entered on December 10, 1986, and as

amended on denial of rehearing and rehearing en banc on

February 11, 1987.

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

The pertinent provisions of the Constitution, statutes, and

regulations involved are set forth in this brief, infra. The

provisions involved are: 49 U.S.C. Section 1903(a)(1); 49

U.S.C. Section 1903(b)(2); 49 U.S.C. Section 701; 49 U.S.C.

Section 1441(a); 49 U.S.C. Section 1441(c); 49 C.F.R.

Sections 831.9(a), 831.10(a), 835.3 and 8445.50.

STATEMENT OF THE CASE

At approximately 8:30 p.m. on December 23, 1985, a twin

engine Beechcraft Baron, number N1494G, purportedly

piloted by James Graham crashed into the Sun Valley Mall

in Concord, California. There were numerous injuries,

fatalities and extensive property damage as a result of this

accident.

The National Transportation Safety Board (NTSB) is

investigating this accident. On orders from the National

Transportation Safety Board, specifically those of the

investigator in charge, the engines of this aircraft were sent

to Teledyne Continental Motors, Aircraft Products

Division’s, (Teledyne) facility in Mobile, Alabama. Said

engines arrived at the facility on approximately January 7,

1986. The engines were transported to this facility in order

to utilize the expertise and specialized facilities of the

engine manufacturer in an NTSB directed tear down of the

engines.

Petitioner, Estate of Graham, (Graham) sought to have

their retained expert Mr. James Jensen present at various

aspects of the engine tear down and investigation of this

crash. The NTSB pursuant to their discretionary authority

denied participation of Graham’s expert during the

investigative phase of this incident.

On January 8, 1986 Petitioner Graham filed a complaint

for injunctive relief in the United States District Court for

the Northern District of California seeking, inter alia, a

temporary restraining order prohibiting the tear down and

analysis of the engines unless their retained expert was

present. A hearing on Petitioner’s motion for a temporary

restraining order was conducted on January 9, 1986 before

the Honorable Marilyn H. Patel, United States District

Judge for the Northern District of California. After oral

argument by all parties, the District Court denied the Estate

of Graham’s Application for a _ Restraining Order.

(Appendix A-10-11)!

Following the denial of the above application, Graham

sought a temporary restraining order in the Superior Court

of the State of California, County of Contra Costa and in

addition, filed a Notice of Appeal in the District Court and

an Emergency Motion for an Order Granting Injunction

during pendency of Appeal or Writ of Mandate in the

United States Court of Appeals for the Ninth Circuit. The

Complaint in the Superior Court of the State of California

was removed by the NTSB and Teledyne to the United

States District Court, Northern District of California and

was later referred to Judge Marilyn H. Patel as a related

action. On January 21, 1986, the Court of Appeals granted

Petitioner’s Emergency Motion enjoining Respondents from

certain testing pending briefing and oral argument. The

United States Court of Appeals for the Ninth Circuit issued

its opinion denying Graham’s appeal and affirming the

' References to Appendix A refer to the appendix attached to

Petitioner’s brief.

district court’s denial of the restraining order on

December 10, 1986 and amended its opinion upon denial of

rehearing and rehearing en banc on February 11, 1987.

Subsequent thereto, Graham filed an Emergency Motion

for Stay of Mandate and Stay of Enforcement of Judgment

with the Court of Appeals for the Ninth Circuit which was

denied on March 4, 1987. Petitioner also filed a Motion for

Reconsideration of Order re Stay of Enforcement of

Judgment which was denied and mandate has issued by the

Ninth Circuit Court of Appeals.

Subsequently, Petitioner sought a Stay of Enforcement of

Judgment and Writ of Injunction pending Petition for Writ

of Certiorari before the Honorable Sandra D. O’Connor

which was denied on February 27, 1987 and renewed this

Motion before the Honorable William H. Rehnquist, Chief

Justice for the United States Supreme Court which was

denied on March 9, 1987.

REASONS FOR DENYING THE WRIT

I,

THE ISSUES INVOLVED IN THIS MATTER

DO NOT MEET THE CRITERIA FOR THIS

COURT?’S REVIEW.

A. The Court of Appeals for the Ninth Circuit’s

decision does not conflict with prior federal

court of appeals decisions.

1. The Court of Appeals for the Ninth

Circuit has properly interpreted the

discretionary provisions of 49 C.F.R.

Section 831.9(a) and Section 831.10(a).

The Court of Appeals for the Ninth Circuit determined

that 49 C.F.R. Sections 831.9(a)? and 831.10(a) > govern

249 C.F.R. Section 831.9(a) Parties to the field investigation.

(a) The investigator-in-charge may, on behalf of the Director, Bureau

of Accident Investigation, or the Director, Bureau of Field Operations,

designate parties to participate in the field investigation. Parties to the

field investigation shall be limited to those persons, government agencies,

companies, and associations whose employees, functions, activities, or

products were involved in the accident or incident and who can provide

suitable qualified technical personnel to actively assist in the field

investigation. (44 F.R. 34418, June 14, 1979 as Amended at 49 F.R.

32852, August 17, 1984).

3 49 C.F.R. Section 831.10(a) Access to and release of aircraft

wreckage, records, mail and cargo.

(a) Only the Board's accident investigation personnel and persons

authorized by the investigator-in-charge, the Director, Bureau of

Accident Investigation, or the Director, Bureau of Field Operations to

participate in any particular investigation, examination or testing shall be

who will participate in the investiga_ion and who will have

access to aircraft wreckage. The above sections were found

to be permissive in authorizing the investigator-in-charge to

designate certain parties to the investigation. The Court

found that the NTSB had not abused its discretion by

deputizing Teledyne and refusing to accord the Estate of

Graham’s representative that same status. The Court

further found that:

“The use of Teledyne’s facilities and expertise in

disassembling its own engines could be indispens-

able in enabling the NTSB to carry out its

mission.”, (A-6)

which is:

‘to investigate or cause to be investigated (in

such detail as it shall prescribe) and determine the

facts, conditions, and circumstances and the cause

or probable cause or causes of any — (A) aircraft

accident .. ..49 U.S.C. Section 1903(a)(1)(1982).”

(A-6)

In similar proceedings in 1984 before the D.C. Circuit a

nonmanufacturer, engaged in representing aircraft manu-

facturers in NTSB accident investigations asserted a right

under the agency’s regulations and a purported property

interest protected by the due process clause entitling it to

serve as the agent for parties in NTSB investigations. In

each instance, the D.C. Circuit denied the stay motions. Its

orders stated that the Petitioners had failed to show a

likelihood of success on the merits. Thereafter, the NTSB

successfully moved for dismissal of the appeals as moot.

permitted access td aircraft wreckage, records, mail, or cargo which is in

the Board’s custody. (44 F.R. 34418, June 14, 1979, as amended at 49

F.R. 32853, August 17, 1984).

Aerospace Management International v. National Trans-

portation Safety Board, 85-1080 (D.C.Cir., Feb. 13, 1985)

(order denying stay pending judicial review) and Aerospace

Management International v. National Transportation

Safety, 85-1428 (D.C.Cir., July 25, 1985) (order denying

stay pending judicial review.) Petitioner’s have completely

failed to demonstrate the existence of circuit conflicts

requiring this court’s review under United States Supreme

Court Rule 17(a).

B. The Court of Appeals for the Ninth Circuit’s

Decision is in conformity with the safety

mission, purpose and requirements of the

National Transportation Safety Board and

does not require intervention by this Court to

produce settled law on an issue of national

importance.

Petitioner has failed to demonstrate that the issues

involved are of such national importance as to require this

Court’s intervention. Whereas certiorari was granted in

Parker v. Flood, 98 S.Ct. 2522, 2524, 473 U.S. 584, 57 L.Ed.

2d 451 (1978) in which the lower court’s ruling had a

potentially debilitating impact on the rapidly expanding

national computer “software” industry and in Exxon Corp.

v. Wisconsin Dept. of Revenue, 100 S.Ct. 2109, 2118, 447

U.S. 207, 65 L.Ed. 2d 66 (1980) which involved questions of

whether a state could impose its own apportionment

formula on a vertically integrated national company despite

the Due Process Clause and Commerce Clause, it should

not be granted in the instant matter.

The Court of Appeals for the Ninth Circuit’s decision

that a governmental agency’s safety mission takes

precedence over a litigant’s desire to participate in the

investigation of the accident promotes safety, governmental

efficiency, and fairness. It neither negatively impacts an

industry nor conflicts with the purposes of the agency’s

enabling act.

1. The pertinent NTSB regulations were

properly promulgated to promote the

investigation of the facts, conditions,

circumstances and causes of any air-

craft accident.

Title 7 governs the investigation of accidents involving

civil aircraft. Specifically,

“Section 701.[72 stat. 781, as amended by 76 stat. 921, 49

U.S.C. Section 1441](a) It shall be the duty of the National

Transportation Safety Board to -

(1) Make rules and _ regulations governing

notification and report of accidents involving civil

aircraft;

(2) Investigate such accidents and report the

facts, conditions, and circumstances relating to

each accident and the probable cause thereof;

(3) Make such recommendations to the secretary

of transportation as, in its opinion, will tend to

prevent similar accidents in the future;

(4) Make such reports public in such form and

manner as may be deemed by it to be in the public

interest; and

(5) Ascertain what will best tend to reduce or

eliminate the possibility of, or recurrence of,

accidents by conducting special studies and

investigations on matters pertaining to safety in

air navigation and the prevention of accidents.”

[Emphasis added]

Title 7 further permits the NTSB to conduct whatever

investigation is necessary to fulfill its duties. [49 U.S.C.

Section 144 1(c).]

In carrying out its duties under this

subchapter, the National Transportation Safety

Board is authorized to examine and test to the

extent necessary any civil aircraft, aircraft

engine, propeller, appliance, or property aboard an

aircraft involved in an accident in air

9?

commerce....

The plain meaning of this language is that the NTSB

must investigate all crashes and test any part to any degree

necessary, to insure the prevention of similar accidents in

the future.

2. Fulfillment of the above mission pre-

cludes participation in NTSB accident

investigations by personnel who cannot

add unique, specialized knowledge or

expertise.

The Court of Appeals for the Ninth Circuit concurred

that the NTSB’s mission and duty were safety related (A-6):

Appellants attempt to impose upon the NTSB

investigation rules of procedural fairness reflects

a misconception of the Board’s mission. The

NTSB’s authorizing statute provides that the

Board shall “investigate or cause to be investi-

gated (in such detail as it shall prescribe), and

determine the facts, conditions, and circumstances

and the cause or probable causes of any...

— a

aircraft accident.” 49 U.S.C. Section 1903(a)(1)

(1982).

Petitioner’s have failed to demonstrate how the question

of excluding a single litigant’s retained expert is of such

unusual importance as to require a hearing by this Court.

United States v. Martorano, 620 F.2d. 912 (1st Cir. 1980)

cert. denied, 101 S.Ct. 356, 449 U.S. 952, 66 L.Ed. 2d 216

(1980); United States v. Lynch, 690 F.2. 213 (D.C. Cir.

1982). The NTSB has and continues to investigate civil

aircraft accidents in an attempt to promote aviation safety.

Petitioners have not and cannot demonstrate that the

exclusion of a single litigant’s retained technical expert on

the basis that he does not add to the safety investigation

requires this Court’s immediate review.

Petitioner’s interpretation of the NTSB’s Investigation

Manual, NTSB Order 6200.1 A, Investigation Manual-

Aircraft Accidents, (April 25, 1980) is erroneous. This

manual specifically states:

“The categories of parties [to the field investiga-

tion} should be interpreted as permitting an

owner/operator to participate... If they request

participation, they or their qualified representative

should be permitted participation.

We should always deal with the owner/operator.

If he is deceased talk to the legal representative of

his estate. When talking to the party repre-

sentatives, the investigator in charge should bear

in mind his obligation to make a decision as to

what type of expertise should be provided.

The decision must be free of prejudice and not

appear capricious. If a nominated consultant is

persona non grata because of the views of other

parties (manufacturer, FAA, etc.) or disliked by

a

the investigator-in-charge, good cause does not

exist for his exclusion. However, if an individual

or a private investigator has demonstrated in the

past an inability to follow board direction or

makes no contribution to the board’s investigative

efforts, the investigator in charge should seek the

designation of someone else.[Emphasis Added].”

Contrary to Petitioner’s assertion, the above specifically

provides the investigator-in-charge with the instruction not

to include any individual who makes no contribution to the

investigative effort. The Court of Appeal for the Ninth

Circuit found that the NTSB had made such a rational

decision when it stated therein:

“By contrast, there is nothing unique Appellant’s

expert could add to the investigation, or so the

NTSB could rationally decide.” (A-6)

The NTSB’s exclusion of Petitioner’s representative from

participating in certain phases of the investigative effort by

the NTSB is neither arbitrary nor capricious as there is a

demonstrable rational basis to support it, as shown above by

the Court of Appeals for the Ninth Circuit’s understanding

that the manufacturer of certain technical components

provides technical insight, specialized knowledge and

specialized facilities geared specifically for that product

which reduces the government’s and the NTSB’s require-

ments to maintain analytical and testing facilities and

personnel. In the instant action, Teledyne’s knowledge of its

own product could obviously assist the NTSB’s staff in the

disassembly, testing and analysis of the engines and would

indeed reduce the risk that someone from the NTSB’s staff

might accidentally and needlessly alter or destroy certain

components.

— [Fu

Il

PETITIONER HAS FAILED TO DEMON-

STRATE ANY CONSTITUTIONAL RIGHT

THAT SHOULD OVERRIDE THE NTSB’S

SAFETY FUNCTION OR MISSION

A. The Court of Appeals for the Ninth Circuit’s

decision appropriately determines that there

is no significant detriment to Petitioner’s

right to contribution or indemnification.

The standard for determining whether governmental

regulation or action in an area where public safety is

involved is whether or not said regulation or action bears a

rational relationship to a legitimate governmental objective.

McGowan y. Maryland, 81 S.Ct. 1101, 366 U.S. 420, 6i

L.Ed. 2d 356 (1961). Air East, Inc. v. NTSB, 512 F.2d.

1227, 1231 (3d. Cir. 1975), cert. denied, 96 S.Ct. 122, 423

US. 863, 46 L.Ed. 2d 92 (1975).

NTSB activities minimally infringe upon any and all

litigants’ and potential litigants’ right to indemnification

and contribution. Even assuming arguendo that Petitioner

enjoys a constitutional right to have its tort liability reduced

by indemnification or contribution such a right would

extend to every péiiy and entity involved in any civil

aircraft accident litigation. By setting forth the specific

regulations involved, by publishing the regulations, by

providing for access to factual information, the NTSB

provides for notice and imparts all technical factual

information such that there is a minimal impact on all

parties. Tanner v. McCall, 441 F.Supp. 503 (1977) modified

in part 625 F.2d 1183 (1980); United States v. Dickens, 695

F.2d 765 (1982); United Steel Workers of America vy.

-~

aan | aie

Sadlawski, 102 S.Ct. 2339, 437 U.S. 102, 72 L.Ed. 707

(1982); Miami Herald Publishing Company yv. City of

Hallandale, 734 F.2d 666 (1984).

Contrary to Petitioner’s assertion, there has been no

destruction of physical evidence nor have or would

Petitioners, or any potential litigant in this instance be

deprived of any physical evidence of the cause of this

particular incident. Petitioner, as will all litigants who come

forward as a result of this tragic incident, will have access

to the NTSB’s factual reports in which it records the factual

results from the disassembly and testing. 49 C.F.R. Section

8445.50. Further, Petitioner as well as all litigants, may

secure the testimony of the investigator who conducted the

tests as to the factual evidence they yielded, the procedures

utilized and the results thereof. 49 C.F.R. Section 835.3.

American Airlines, Inc. v. United States, 418 F.2d 180 (Sth

Circuit, 1959); Kline v. Martin, 345 F.Supp. 31 (E.D. VA,

1972); Berguido v. Eastern Airlines, Inc. 317 F.2d 628, 631

(3rd Circuit, 1962) cert. denied,84 S.Ct. 170, 375 U.S. 895,

11 L.Ed. 2d 124 (1963); Lobel v. American Airline, Inc., 192

F.2d 217 (2nd Circuit, 1951).

The availability of these factual reports generated by the

NTSB and its investigators to all parties involved in the civil

litigation which arises from such an incident is well known.

However, Petitioner’s brief fails to establish that such

reports exist and further fails to explain why such reports

and access to all physical evidence does not meet

Petitioner’s requirements for evidentiary concerns as well as

all other litigants who have the identical vested interest as

Petitioner. The ability of the NTSB to complete the safety

mission entrusted to it by Congress without concerns

extraneous and inconsistent with said mission is adequately

=r

addressed in footnote 10 of the decision by the Ninth

Circuit.4 (A-9).

B. The Tucker Act provides Petitioner with an

appropriate remedy should there be a

resultant taking of property.

Contrary to Petitioner’s assertion that the NTSB and

Teledyne have asserted a right to test and destroy evidence

with immunity, neither party has ever asserted such.

Rather, this Respondent asserts that as an agent of the

NTSB, duly appointed to assist the NTSB in its safety

investigation, it may assist the NTSB in their search and

* Footnote 10 of the Court's opinion is:

“Appellant is not the only who can claim a legitimate

interest in the NTSB’s investigation; presumably the estates

of others killed in the Sun Valley Mall crash, as well as those

who were injured or suffered property damage, could assert

that their rights will be impaired if their representatives are

not allowed to observe the teardown. If appellant’s claim

were sustained on constitutional grounds, it would be

difficult to exclude these others. The problem would be

infinitely multiplied in a crash involving an airliner where

literally hundreds of interested parties may be in the position

of having some interest potentially affected by the NTSB’s

investigation. The NTSB would be renderés entirely

ineffective in carrying out its mission if it were required to

allow all of these parties access to every critical step of the

investigation. The government must be allowed to carry out

its responsibilities; if private property is taken in the process,

the appropriate remedy is a suit for compensation.

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1019-20, 104

S.Ct. 2862, 2882, 81 L.Ed.2d 815 (1984); Dames & Moore v.

Regan, 453 US. 654, 688-90, 101 S.Ct. 2972, 2991-92, 69

L.Ed.2d 918 (1981).”

a

investigation for a cause of this incident. The Court of

Appeals for the 9th Circuit adequately addresses the

retention, possession, and maintenance of key elements of

proof in footnote 9 of its opinion.* (A-8)

> Footnote 9 of the Court’s opinion is:

“Appellant has expressed concern that Teledyne may

alter or destroy vital eivdence. This case, however, is not

much different from those where an adverse party retains

possession of key elements of proof, e.g., purloined trade

secrets, documents proving fraud, or machinery involved in

persoanl injury accidents. The presumptions and sanctions

available to punish those who alter or destroy evidence must

be considered sufficient to deter any misconduct and

Teledyne is no doubt aware that its handling of the materials

may come under intense scrutiny. See, e.g., Fed.R..Civ.P. 37;

Alexander v. National Farmers’ Org., 687 F.2d 1173, 1205-

06 (8th Cir. 1982), cert. denied, 461 U.S. 937, 103 S.Ct. 2108,

77 L.Ed.2d 313 (1983) (inference may be drawn against

party destroying documents); Bowrmar Instrument Corp. v.

Texas Instruments, Inc., 25 Fed.R.Serv.2d 423, 427

(N.D.Ind. 1977) (sanctions appropriate where party de-

stroyed evidence it should have known would be relevant in

future litigation). In any case, as we understand the NTSB’s

procedures, the engines will be handled by Teledyne

employees only under the supervision of NTSB

investigators.”

CC

a ome

CONCLUSION

For these reasons, the Petition for Writ of Certiorari

should be denied.

Respectfully submitted,

JACQUES E. SOIRET

MICHAEL L. KELLY

BRUCE G. SHANAHAN

Law Offices of

KIRTLAND & PACKARD

626 Wilshire Boulevard

Los Angeles, California 90017

(213) 624-0931

Attorneys for Respondents