Petition for Writ of Certiorari — Gibson v. Boeing Co.

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: Orice Suoreve Jourt, UR |

84-gsll | FILED

MOY ic 1984

ALEXANDER t STEVAS,

No. i

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

H.G. GiBson, J. SCOTT KENNEDY,

and GARY N. BANKS, Petitioners,

Via

THE BOEING COMPANY, a corporation;

THE NATIONAL TRANSPORTATION SAFETY BOARD

and JAMES KING, Chairman;

THE FEDERAL AVIATION ADMINISTRATION,

and J. LYNN HELMS, Administrator, Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH COURT

LANDON GERALD DOWDEY

310 Metropolitan Square

655 Fifteenth Street, N.W.

Washington, D.C. 20005

(202) 872-1997

THOMAS D. BEATTY

601 East Bridger Avenue

Las Vegas, Nevada 89101

(702) 382-2721

Counsel to petitioners

QUESTIONS PRESENTED FOR REVIEW

This is a defamation action brought by

three airline pilots against The Boeing

Company for statements which blamed a near

fatal six mile dive of a Boeing 727 on

plaintiffs' unprofessional conduct. The

pilots also made claims against the Na=

tional Transportation Safety Board (NTSB)

and Federal Aviation Administration (FAA)

for damages under subsections (g)(1) (C)

and (D) of the Privacy Act (5 USC §522a).

The questions raised by the summary

judgments for Boeing and the government

agencies are these:

1. Is the communication of "a written

report to the NTSB," where it becomes a

public record, protected by an absolute

governmental immunity or privilege?

2. Is summary judgment as to the “mal-

ice" necessary to overcome a qualified

privilege appropriate prior to any dis-

covery being allowed plaintiffs and not-

withstanding their pending, unanswered

interogatories, doCument requests, and two

affidavits of counsel invoking Fed R. Civ.

P. 56(f£)?

3. Are plaintiffs' claims under sub-

sections (g)(1)(C) and (D) of the Privacy

Act sufficient if they concern a "record"

as defined in subsection (a)(4), or must

such claims relate also to a "system of

records" as defined in subsection (a) (5)?

Also, does the failure of defendant agen-

cies to incorporate investigation materi-

als about this accident i» the "system of

records" they maintain for aircraft ac-

cident investigations bar this action?

iii

4. Is the exercise of this Court's

certiorari jurisdiction unreasonably

burdened by successive summary disposi-

tions which fail to elucidate important

legal issues involved or deal adequately

with a complicated state of facts which

has given rise to a national controversy

Over air safety?

The caption of the case contains the names

of all parties.

TABLE OF CONTENTS ‘*

Page

Opinions Below . .. «+ e+e es »« ‘ 2

Jurisdiction o e e es . . es ° a e e . 8 2

Statutory Provisions Involved. ... . 3

Statement of the Case. . . « « « « « « 4

"The Plane That Fell Out of the

Sky"--according to the complaint . 5

Alleged publications by Boeing

agents e e es e e oe e e e ° o e a e 7

Privacy Act allegations. ..... 8

Discovery sought and suspended .. 10

Reasons for Granting the Writ. .... 13

Conclusion e o e o eo o e o ° e eo e e @ 38

Table of Authorities

Cases

Albright v. United States. ......- 30

BQn@ VW. SRONCEE. «© «© © se we oe © wo ew ew « 2G

Bose Corporation v. Consumers Union 22, 28

Butz Vv. ECOMOMU. « « © © © © © e@ © o@ «

moeens ©. Beme GC H.¥. «© ss ws we we ww 8

Cnaemen 7. MABA « © «© se ee we woe oe sw 85

CLI@EZERSON VV. IRS « « « « © « «© 3Oy 31, 35

Delome v. Union Barge Line Co. .... 15

vi Table of Contents Continued

Dun & Bradstreet v. Greenmoss

Builders, Inc. . ...-s.

Elder v. Holland ......

Engelmohr v. Bache .... .

Garter-Bane Co. v. Munsingwear

Gersh v. Ambrose .....«-.

Greenmoss Builders, Inc. v. Dun &

Bradstreet, Inc. ... -

Handi Investment Co. v. Mobil Oil Corp

Page

20-21

Harlow v. Fitzgerald... .

RnOx WV. DICK « « « © © © @ «@

Londrigan v. FBI ....« «

Loudin v. Mohawk Airlines, Inc.

Maple Island Farm v. Bitterling.

Nixon v. Fitzgerald. ....

Parrish v. Board of Commissioners.

Program Engineering v. Triangle

PUDLAGCOCIONB « 2 2© 8 ©

Texas Partners v. Conrock Co.

Timberland v. Bank of America. .

United States v. Johns Manville Corp.

Washington v. Cameron... .

Statutes

Fourteenth Amendment to the

19-20

Constitution of the United States.

Department of Transportation

1966 . e e « e . e o . e

Federal Aviation Act of 1958

49 USC

§1441 . e . e , ° © 7 e

§1421 et seq. .

Privacy Act of 1974, 5 USC §552a

febt@s . se« se es 6b &

Table of Contents Continued

(a)(5) . .

(e)(1l) ..

(e) (4). .

(@) (5) « « «

(e) (6) .

(e)(7) .

(g)(1)(C). .

(g) (1) (D). .

Transportation Safety Act of 1974,

49 USC

SaeeetGs + « ss « 6 & oe se « UGK,

Saseste) «ws ws se we eee eee es

pawwerey 6 4 6 «+ 6 © 8 6 8 8 ee

lf Si oe a oe oe ee ee ee eee

io a ee ee ae ae oe ee ee ee ee

Rules of Court

52(a). .

36 s 6 *

56(e). .

56(f). .

Fed. R. Civ. P.

Form 2(a).

Other Authorities

Federal Register, July 4, 1977... .

OMB Guidelines for Implementation of

The Privacy Act 40 FR 28948,

40 FR 28964. -_ . o cm . . . . . eo o

William L. Reynolds and William R.

Richman, "An Evaluation of Lim-

ited Publication in the United

States Courts of Appeal: The

viii Table of Contents Continued

Price of Reform," 48 U. Chi.

Le Rev. 573. . . . . . . - . . . n 37

Retatement of Torts, 2d (1977)

§598 . . °° e . o . . . . . . . o . 21

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1984

H.G. Gibson, J. Scott Kennedy and

Gary N. Banks, petitioners

The Boeing Company, The National Trans-

portation Safety Board, James King,

The Federal Aviation Administration

and J. Lynn Helms, respondents

PEVITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The petitioners, H.G. Gibson, J. Scott

Kennedy and Gary N. Banks respectfully

pray that a writ of certiorari issue to

review the judgment and opinion of the

United States Court of Appeals for the

Ninth Circuit entered in this proceeding

on April 9, 1984.

Opinions Below

The memorandum opinion of the United

States Court of Appeals for the Ninth Cir-

cuit appears in the appendix to this peti-

tion (A 1) but is not and will not be re-

ported under that Court's Rule 21l(c) and

the panel's finding. No opinion was rend-

ered by the District Court for the Dis-

trict of Nevada. Its findings of fact and

conclusions of law and grant of summary

judgment thereon are set out in the ap-

pendix (A 9, A 17, A 18, & A 25)

Jurisdiction

The judgment of the Court of Appeals

for the Ninth Circuit was entered April 9,

1984. A timely petition for rehearing and

rehearing en banc was denied July 20,

1984. This Court, upon application filed

herein on October 12, 1984 entered an

order on October 18, 1984 extending the

time for filing a petition for writ of

certiorari in this case to and including

November 16, 1984. This Court has juris-

diction under 28 USC §210l(c).

Statutory Provisions Involved

Federal Aviation Act of 1958, Pub. L.

85-726, Title VII, §701, August 23, 1958,

72 Stat. 781, as amended by Pub. L. 87-

810, 1, 2, Oct. 15, 1962, 76 Stat. 921,

codified to 49 USC 1441 is set out in the

appendix (A 81). Transportation Safety Act

of 1974, Pub. L. 93-633, Title III,

January 3, 1975, 88 Stat. 2166, codified

to 49 USC 1901 et seq. is set out in the

appendix (A 83). Privacy Act of 1974, Pub.

L. 93-579, December 31, 1974, 88 Stat.

1897, as amended by Pub. L. 94-183,

December 31, 1975, 89 Stat. 1057, codified

to 5 USC 552a is set out in the appendix

(A 93).

Statement of the Case

Petitioners, a professional flight

deck crew employed by Trans World

Airlines, allege in their complaint that

on April 4, 1979 they were operating a

Boeing 727 near Flint, Michigan.

"Unexpectedly, and for reasons unknown to

plaintiffs," the aircraft “fell from an

altitude of approximately 39,000 feet in a

spiral dive to near 5000 feet before

plaintiffs were able to regain control and

avert a crash which most certainly would

have taken the lives of 82 passengers and

a flight crew of seven” (A 29).

Controversy has raged around the cause

of this near calamity ever since the crew

safely landed their crippled aircraft at

Detroit over four years ago. As recently

as July 14 of last year CBS did an hour

long documentary on “The Plane That Fell

Out of the Sky.”

A jury trial of the issues was pre-

vented by entry of summary judgment for

defendants last year in plaintiffs' then

two year old lawsuit against Boeing, the

NTSB and the FAA. No discovery had been

permitted in the case up to that time, so

the record for review is limited to the

complaint, affidavits, exhibits, and the

discovery requests plaintiffs were denied.

"The Plane That Fell Out of the Sky"--

according to the complaint*

After reciting the circumstances of

the spiral dive as set out above and the

commencement of NTSB and FAA investiga-

tions, the complaint alleges "defendant

NTSB turned over to an interested party,

namely defendant Boeing, the conduct of

*Although the complaint is not set out

in the appendix to this petition,

Significant paragraphs are quoted in

plaintiffs‘ excerpted interrogatories

which are reproduced in the appendix.

most of its investigative and testing

functions, knowing full well that said de-

fendant had a strong economic and public

relations incentive to shift any blame for

the spiral dive away from themselves and

onto the pilots of the aircraft." Boeing,

the complaint goes on, “conducted its in-

vestigations and tests so as to support

its claim that safety factors built into

the 727 are so extensive that the spiral

dive could not possibly have been precip-

itated by any mechanical or structural,

manufacturing or design defect in its

aircraft. To this end its investigation

attempted to explain away, as causative

factors, (1) all noticeable defects,

damaged and defective parts discovered

after the aircraft landed in Detroit; (2)

laboratory tests...and (3) other technical

defects and deficiencies too numerous to

mention (A 32-33).

"Defendant Boeing then went beyond its

assigned task as investigator of facts and

scientific tests, and without waiting for

all the evidence and tests to be finished,

Stated as conclusions: (1) The cause of

the upset was some unauthorized cockpit

procedure engaged in by the flight deck

crew; (2) had the crew taken prompt and

appropriate action after their aircraft

began to roll, they could have regained

control easily; and (3) the last second

recovery from the spiral dive and preven-

tion of a major air disaster was fortui-

tous and due to circumstances for which

the crew was only minimally responsible"

(A 33-34).

Alleged publications by Boeing agents

The complaint alleges that the fore-

going assertions by Boeing "(1) were pub-

lished through its many agents, servants

and employees, and in a written report to

defendant NTSB where it became a part of

the public record and widely circulated

through official and aircraft industry

channels and in the public media; (2) are

false and based on theories unsupported by

fact and discredited by tests; (3) were

published with knowledge of their falsity

or with reckless disregard for their

truth, or negligently; (4) went beyond the

scope of prescribed practice in NTSB and

other scoident investigations in that the

stated conclusions were premature and

amounted to a prejudgment before all the

evidence was in; and (5) went beyond the

purpose of the inquiry in that the con-

clusions were motivated by an attempt to ‘

side-track any meaningful investigation of

the airworthiness of the Boeing 727, the

most widely used commercial aircraft in

service today" (A 34-35).

Privacy Act allegations

The complaint alleges, paraphrasing

the language of subsections (e)(6) and

(g)(1)(C) and (D) of the Privacy Act (5

USC §522a), that defendant agencies failed

to “maintain records concerning the indi-

viduals involved with such accuracy, rele-

vance, timeliness, and completeness as is

necessary to assure the fairness of any

determination relating to the qualifica-

tions, character, rights or opportunities

of, or benefits to, the individual that

may be made on the basis of such record."

In consequence, defendant FAA, "determined

and published through official and air-

craft industry sources and to the public

media, the groundless’ assertion that

plaintiff had intentionally erased the

cockpit voice recorder in order to conceal

information about their conduct respecting

the spiral dive" (A 43).

Similarly, influenced by their own

improperly maintained records, defendant

NTSB “determined and published through

official and aircraft industry sources and

to the public media" Boeing's groundless

assertions of crew responsibility for

losing control of the aircraft they were

piloting (A 45-46).

Discovery sought and suspended

A few months after commencement of

this action, plaintiffs served a number of

interrogatories and document requests on

defendants which inquired, for the most

part, about specific allegations of the

complaint and answer (A 29-48).

Shortly thereafter, the Court issued

an order (A 26-27) suspending Boeing's ob-

ligation to respond to plaintiffs" out-

Standing interrogatories and document re-

quests until 30 days after disposition of

the "motion to dismiss" Boeing planned to

file. Plaintiffs had agreed to this sus-

pension upon the written representation of

Boeing's counsel that the intended motion

"raises legal issues unrelated to the dis-

covery requested of my client" (A 64).

Boeing's proposed "motion to dismiss"

became a "motion for summary judgment"

when it was filed. Its stated grounds were

limited, however, to the defense of "ab-

solute privilege" for its "written report

to defendant NTSB" which it attached to

its motion together with affidavits show-

ing its transmittal and receipt. Plain-

tiffs responded, treating the motion as

one to strike that claim only (A 66).

To illustrate, without benefit of dis-

covery, some of the disputes which re-

volved around the "Boeing report," plain-

tiffs filed a then recent article from a

professional journal which reviewed, in

summary form, the history of the Flight

841 investigation (A 49).

Boeing then filed a reply memorandum,

and with it “proposed findings of fact and

conclusions of law" which greatly expanded

the breadth of its summary judgment mo-

tion. Most notably, it proposed that the

Court find in its favor "whether the

privilege is considered absolute or con-

ditional” (A 15, 67-68).

Faced with this radical expansion of

issues, plaintiffs filed an affidavit of

counsel under Fed. R. Civ. P. 56(f) ex-

plaining in detail why plaintiffs could

not respond to defense affidavits without

discovery (A 64).

When the summary judgment motion fin-

ally came on for hearing some fifteen

months later--the delay.w~being caused en-

tirely by Court-initiated postponements (A

77-78) --plaintiffs' counsel reexecuted and

refiled the same Rule 56(f) affidavit

three days before arqument (A 75).

A few days thereafter, the District

Court endorsed the findings of fact, con-

clusions of law and summary judgment

proposals submitted by defendants with no

Change other than striking out the word

"proposed." Defendants' proposals, having

been submitted some seventeen months ear-

lier, before either of the Rule 56(f) af-

fidavits were filed, took no notice of

them nor of the plaintiffs' outstanding

discovery requests (A 9-25).

REASONS FOR GRANTING THE WRIT

1. The failure to apply fundamental

Gistinctions between absolute and quali-

fied immunities! to the investigative

role of the National Transportation Safety

Board is a disservice to that important

federal news making agency and the many

segments of the public who deal with ‘¢

constantly. 2

laAbsolute immunities of officials

other than the President of the United

States “extend only to acts in performance

of particular functions." Nixon v. Fitz-

gerald U.S. _, 73 L. Ed. 349, 363, 367

(1982). “Moreover, in general, our cases

have followed a ‘'functional' approach to

immunity law. We have recognized that the

judicial, prosecutorial, and legislative

functions require absolute immunity. But

this protection has extended no further

than its justification would warrant."

Harlow v. Fitzgerald U.S. _, 73 L. Ed.

396, 406 (1982).

Qualified immunity is the norm for ex-

ecutive officials generally, including

governors and members of the President's

cabinet. Harlow v. Fitzgerald, _ U.S. _,

71 L. Ed. 396, 403 (1982); Butz v. Ec-

onomu, 438 U.S. 478, 508 (1978).

2The Court of Appeals was concerned,

however, with pleading diversity of citi-

zenship as a paraphrase of the Fourteenth

Amendment ("a citizen of the United States

and a resident of the State of Nevada")

instead of in the conclusory language of

(footnote 2 continued on page 17)

The NTSB is an anomaly among federal

agencies; for its accident investigation

function is concerned solely with public

advocacy of transportation safety, a mat-

ter over which it exercises no adjudica-

tory or rule making authority.

49 uUSC §1903(a)(1) authorizes’ the

Board to “investigate or cause to be in-

vestigated...and determine the facts, con-

ditions, and circumstances and the cause

Or probable cause or causes of any...air-

craft accident" or other transportation

2(continued)

Fed. R. Civ. P. form 2(a). This concern

found its way into the Court's memorandum

(A 1-2). “Standing alone, an allegation

that a party is a resident of a certain

state is not a sufficient allegation of

his citizenship in that state" (empahsis

added), Delome v. Union Barge Line Com-

pany, 444 F.2d 225 at 233 (5th Cir. 1971);

but coupled with United States citizen-

ship, it meets the state citizenship test

of the Fourteenth Amendment and confers

diversity jurisdiction. Maple Island Farm

v. Bitterling, 196 F.2d 55 at 57-58 (8th

Cir. 1952), a case argued successfully by

Warren E. Burger, the present Chief Just-

ice.

accident (A 86). In subsection (a)(2) it

is authorized to “report on the facts,

conditions and circumstances of each ac-

cident...and cause such reports to be made

available to the public” (A 87) 3

3In subsection (a)(3), NTSB is di-

rected to “issue periodic reports” to

other government agencies and interested

persons “recommending and advocating mean-

ingful responses to reduce the likelihood

of recurrence of transportation accidents

similar to those investigated by the

Board...." The remaining paragraphs of

subsection (a), insofar as they relate to

accident investigations, list similar re-

commending activities and in paragraph (6)

the NTSB is authorized to "establish by

regulation requirements binding on persons

reporting accidents subject to the Board's

investigatory jurisdiction under the sub-

section.” The Federal Aviation Act of

1958, as amended (A 81), confers almost

identical functions on the NTSB in 49 USC

§1441(a).

In aid of these purposes (and some

others unrelated to accident investiga-

tion), the Board, under 49 USC §1903(b)

(1), may delegate its authority to any

Board member, administrative law judge,

officer or employee. Persons so dele-

gated may hold hearings, administer oaths

and require the attendance of witnesses

and production of documents by subpoena

"as such officer or employee deems advis-

able” (A 88).

But the NTSB adjudicates no rights and

promulgates no rules in connection with

the exercise of its accident investigation

functions. Its determination of “probable

cause” has no legal or administrative con-

sequences and under 49 USC §144l(e) and

1903(2) is not even admissable in evidence

in any other proceeding (A 90). NTSB re-

commendations for improvement in air safe-

ty regulations have no authority beyond

their persuasiveness to the Secretary of

Transportation--the responsibe air safety

rule making agency under 49 USC §1421 et

seq---who is entirely free to accept or

reject NTSB suggestions. 49 USC §1906 (A

92). Thus NTSB "determinations" are essen-

tially “publications” by an agency having

no function beyond reporting the results

of what is presumably its own independent

investigation.

In furtherance of this purpose, it has

an affirmative duty under 49 USC §1905 to

make available to the public, subject to

certain limited exceptions, “Copies of any

communications, document, investigation,

Or other report, or information received

or sent by the Board, or any member or

employee of the Board” (A 91).

Ever since the NTSB was established by

the Department of Transportation Act of

1966,4 it has exercised its recommending

function with respect to accident investi-

gations side by side with certain quasi-

judicial functions it inherited from the

old Civil Aeronautics Board.5

Impressed by CAB's “quasi-judicial and

4act of October 15, 1966, Pub. L.

No. 89-670, 80 Stat. 931.

SThus it reviews on appeal, under 49

USC §1903(a)(9){A), licensing certificate

decisions of the Secretary of Transporta-

tion; and, inherited from other sources,

under 49 USC §1903(a)(9)(B), it reviews

appeals from licensing decisions by the

Commandant of the Coast Guard (A 88).

I ee

quasi-legislative powers” respecting the

economic regulation of air carriers, a New

York trial court in 1964 held in Loudin v.

Mohawk Airlines, Inc.© that a witness at

a public hearing on the cause of an air-

craft accident before the Civil Aeronau-

tics Board was protected by an absolute

privilege. The Court failed to notice,

however, that CAB's accident investigation

function was no longer related to any air

safety rule making authority after the

Federal Aviation Action of 1958 trans-

ferred that responsibility to the newly

644 Misc. 2d 926, 255 NYS 2d 302 (S.

Ct., N.¥. County, 1964), modified, 24

AD2d. 447, 260 NYS 2d 809 (S. Ct., Appel-

late Division, First Department, 1965), on

remand, 58 Misc. 1035, 297 NYS 2d 630

(where it is pointed out, 297 NYS 2d at

632, that the claimed defamation was based

on sworn testimony of a witness at a pub-

lic hearing).

formed Federal Aviation Administration. /

The absence of a functional analysis

in Loudin has caused it to drop out of

sight in subsequent decisions. Loudin was

described by the Supreme Court of Washing-

ton (the highest court of defendant Boe-

in,‘s home state) as “one isolated case”

which, in 1966, it refused to follow in

Engelmohr v. Bache.8 There it was held

that a witness before an administrative

body appointed by the Securities and Ex-

change Commission to study rules governing

national securities exchanges did not have

the benefit of absolute privilege. The

Court explained, "We do not want to depart

from the established policy in this coun-

try.”

Tact of August 23, 1958, Pub. L.

85-726, 72 Stat. 731, §701, House Report

No. 2360, 1958 U.S. Code Cong. & Adm.

News, p. 3746-3748.

866 Wash. 2d 103, 401 P.2d 346, 348

(1965), cert. denied 382 U.S. 950.

Engelmohr v. Bache has since been fol-

lowed in Virginia (1967),% Maryland

(1981),19 and most recently in Nevada

(1983).11 «Its principle has found its

way into the 1977 Restatement of Torts 2d,

Comment e to §598:

Testimony offered before inves-

tigating committees, commissions and

other bodies properly authorized to

conduct investigations is conditional-

ly privileged unless the investigation

is a judicial or a legislative pro-

ceeding, in which case the testimony

is absolutely privileged....

Into which of these categories do NTSB

proceedings fit? Mass media coverage of

transportation disaster investigations--

Or near disasters such as here involved--

gives daily emphasis to the importance of

9Flder v. Holland, 208 va. 15, 155

SE 2d 369 (1967).

l0Gersh v. Ambrose, Md. , 434

A.2d 547 (1981).

1lknox v. Dick __ Nev. __, 665 P.id

267, 270 (1983).

an authoritive answer to this now unset-

tled question.

2. To the extent that the ruling below

may be said to rest on the establishment

of a qualified immunity or privilege, it

fails to meet the special standards of ap-

pellate review respecting determinations

of “malice” in defamation cases recently

announced by this Court in Bose Corp. v.

Consumers Union of U.S., Inc. US P

No. 82-1246, decided April 30, 1984.

Also involved is the applicability of

the "malice" standard in a non-media de-

famation case now pending before the Court

in Dun & Bradstreet, Inc. v. Greenmoss

Builders, Inc., No. 83-18, to review the

holding of the Supreme Court of Vermont

sub nom. Greenmoss Builders, Inc. v. Dun &

Bradstreet, Inc., 46 A.2d 414 (1983).

Is the "independent examination of the

whole record" mandated by Bose excused by

petitioners’ alleged inaction in pressing

their discovery demands during "the

lengthy time between Boeing's motion for

summary judgment and the hearing on the

motion" (A 6)?

Traditionally, and in the Ninth Cir-

cuit, the effect of filing a motion for

summary judgment is to suspend the "gen-

eral right to discovery," and until snch

motion is resolved, discovery may be pur-

sued by a party, according to Rule 56(e),

only to the extent that the “court may

permit affidavits to be supplemented or

opposed by depositions, answers to inter-

rogatories or further affidavits" (empha-

sis added).12 The appropriate way to

seek permission for discovery during the

l2vimberlane Lumber Co. v. Bank of

America, 549 F.2d 597, 602 (9th Cir.

1976); United States v. Johns-Manville

Corporation, 237 F. Supp. 893 (E.D. Pa.

1965).

pendency of a summary judgment motion is

by filing a Rule 56(f) affidavit, although

some courts, including the Ninth Circuit,

sometimes allow Rule 56(f) discretion to

be invoked by motion.13 Although a Rule

56(f) affidavit is not a motion (as the

Court's memorandum describes it), fil-

ing it has the effect of invoking the full

range of the court's discovery discretion

under Rule 56(e):

The District Court, by the terms of

Rule 56(f), [has] the options of re-

fusing to grant summary judgment,

ordering a continuance to permit af-

fidavits to be secured or discovery to

be conducted, or entering ‘such other

order as [is] just'.14

Since the chief impediment to a response

on the merits according to the affidavit

here involved was the stipulation and

l3program Engineering, Inc., v. Tri-

angle Publications, Inc. 634 F.2d 1188,

1193 (9th Cir. 1980).

l4nondrigan v. FBI, 670 F.2d 1164,

1175 (D.C. Cir. 1981).

Order suspending Boeing's obligation to

respond to pending interrogatories and

document requests (A 71)--on the precise

issues upon which it was seeking summary

judgment (A 33-37)--an order permitting

"discovery to be conducted" on these is-

sues was plainly the relief plaintiffs

sought.15 aA separate motion, seeking

this same relief, would not only be re-

dundant; it would encourage a practice

specifically disapproved.

When it appears on a Rule 56(f) ap-

15The affidavit stated (A 71-72)

"Plaintiffs are therefore unable at this

time, without discovery, to present by af-

fidavit or otherwise facts essential to

justify their opposition to defendants'

motion[s] for summary judgment" (emphasis

added). After outlining specific issues

that needed development (A 72-73) it con-

cludes, "plaintiffs respectfully request

the court not to try this case on affi-

davits, deny the pending motions for sum-

mary judgment and set the case down for

trial on the merits at the earliest op-

portunity after completion of discovery"

(A 74, emphasis added).

plication that answers to interrogatories

"might be relevant" to the issues on a

pending motion for summary judgment, a

stay order making it unnecessary to answer

them must be vacated and the applicants

"allowed further discovery."16 "A _ de-

fendant who has failed to answer relevant

and timely interogatories is, as least

normally, in no position to obtain summary

judgment. "17

Of course, a different case would be

presented if plaintiffs had been dilatory

in pursuing discovery. But the record in

this case affirmatively establishes plain-

l6éHandi Investment Co. v. Mobil Oil

Corp.,, 550 F.2d 543, 547 (9th Cir. 1977).

See also Washington v. Cameron, 411 F.2d

705, 710, (D.C. Cir. 1969).

l7Bane v. Spencer, 393 F.2d 108, 109

(lst Cir. 1969) cert. denied 400 U.S. 866.

The same is true of document requests.

Parrish v. Board of Commissioners, 533

F.2d 942, 948 (5th Cir. 1976) cited with

approval in Texas Partners v. Conrock Co.,

685 F.2d 1116 at 1119 (9th Cir. 1982).

ata ie Art eo “Garten

tiffs' diligence. The long delay in hear-

ing the motions to dismiss or for summary

judgment--and ruling on plaintiffs' Rule

56(f£) affidavit--was occasioned entirely

by month to month sua sponte postponements

by the district judge (A 77-78).

In an effort to expedite hearing of

these motions, counsel for all parties

Stipulated that they might be heard by a

magistrate. But the Court refused to ap-

prove the stipulation (A 77). To suggest

that another application to the Court--to

obtain discovery during the pendency of

Summary judgment motions--would receive a

more expeditious response than the Rule

56(f) affidavit is a more hopeful specula-

tion than the record in this case war-

rants.

The interrogatories which plaintiff-

appellants served shortly after the com-

mencement of this action and other ma-

terialsl!74 provide as high a degree of

issue specificity as is possible for a

legal standard as subjective as "actual

maiice," a concept which is, moreover,

undergoing rapid modification and change

as the Court's current docket testifies.

On such issues, as Bose explains, "the

rule of independent review" by appellate

17asee

(a) the high degree of issue

specificity in the interrogatories

plaintiffs wanted answered (A 28);

(b) the context of a continuing

national controversy over Boeing's

disparagment of plaintiffs' profes-

sional conduct exemplified in a tech-

nically detailed article from a

professional journal attached as an

exhibit to plaintiffs' opposition to

summary judgment (A 44);

affidavits and testimony in other re-

lated litigation (A 72-73);

(d) the conflict between’ the

federal agency denial of a."“system of

records" with a federal register

publication describing a "system of

records" in which records of this ac-

cident were required to be maintained

(A 106); and

(e) a deposition in related

litigation showing a_ breakdown in

govenment record keeping (A 78).

;

courts "cannot be delegated to the trier

of fact" (Slip Op. at 14). Summary judg-

ment appeals, which are ordinarily a

matter of de novo appellate review in any

event, certainly cannot dispose of such a

sensitive matter by delegation to lower

court "discretion." This is doubly

improper in this case since the suspicion

that attaches to “mechanical adoption of

the successful attorney's *suggested'

findings" in a Rule 52(a) appeal is

“equally applicable to a Rule 56 appeal,"

requiring the court to scrutinize such

rulings with special care.18

3. The Court below held: “The Privacy

Act mandates certain requirements for gov-

ernment documents organized in ‘systems of

records'.... [T]he official files of the

incident in this case were not organized

l8Garter Bare Co. v. Munsingwear,

Inc., 650 F.2d 975, 980 (9th Cir. 1980).

in this fashion, and so fall outside the

plain language of the statute. But at

least two other circuits, applying the

same "plain language” test, have held

otherwise.

The District of Columbia Circuit in

Albright v. uU.S.19 held that "no re-

cord” in subsection (e)(7)--set out at A

98--is not restricted by its c encement

(A 96) describing the kind of agencies to

which it was applicable as those that

maintain "a system of records,” the terms

being separately defined by subsections

(a) (4) and (a)(5) in the Act (A 93).

In Clarkson v. 1RS29 the Eleventh

Circuit reexamined and followed Albright

as to subsection (e)(7); but declined, out

of concern for statutory objectives, to ex-

tend the Albright rationale to subsections

19631 F.2d 915 (D.C. Cir. 1980).

20678 F.2d 1368 (llth Cir. 1982).

(e)(1) and (e)(5), set out at A 96, 97.

(g) (1) (Cc), A 99, and (e)(6), A 97-98,

here involved, have nothing to do with

"retrievability” within a “system of rec-

ords.” The somewhat similarly worded sub-

section (e) (5), for example, is limited to

"records...used by the agency in making

any determinations about an individual.”

Its purpose, according to Clarkson is “to

minimize, if not eliminate, the risk that

an agency will make an adverse determina-

tion about an individual” based on faulty

data. But when the risk of an adverse de-

termination has become the fact of one,

retrieval is no longer an issue and (g)

(1) (C) comes into play. (e)(6) is simi-

larly unconcerned with indexing method-

Ology. It is directed to “disseminating

any record about an individual to any per-

son.” If the defendant agency has dissemi-

nated a record of poor quality to the pub-

lic, what difference does it make that the

broadcast record is not part of a "system

of records"?

Paragraph (C) of subection (g)(1) is

by its terms expressly directed at adverse

determinations which result from the

failure to maintain “any record” with suf-

ficient accuracy, timeliness and com-

pleteness. By what logic, therefore, can a

cause of action applicable to "any record”

be read to extend only to “any record--

contained in a system of records”?

The negative response of the system

respecting records of this accident is no

defense and calls for an explanation.

Within three hours after this accident FAA

investigators were busy interviewing Cap-

tain Gibson in his hotel room (A 51). A

few days later, "FAA and NTSB revealed to

the press the discovery that the cockpit

voice recorder had been erased"--a cir-

cumstance which, despite its sinister im-

plications to an uninformed public, should

have little or no significance in a pro-

fessional investigation. Such recorders

"work on a 30-minute, continually erasing

cycle, and the incident occurred some 45

minutes before the flight landed" (A 52).

Two years later, after this action was

filed, the “investigation” was still in

progress and still drawing national TV

coverage for the NTSB.

In this context, how should the Court

receive the affidavit of FAA's assistant

chief counsel that after a search of the

system in which records of this notorious

investigation belong, “there are no such

records contained in the system"? Such a

response raises far more questions than it

answers. To the obvious question of “why?”

must be added some highly specific inqui-

ries about defendants’ complaince with the

Privacy Act.

Subsection (e)(4), A 97, requires an-

nual publication in the Federal Register

of a detailed description of all systems

of records maintained by an agency. Ac-

cording to the published description of

defendants’ "General Aviation Aircraft Ac-

cident System" (A 106), it should contain

"reports of accident investigation,” "en-

gineering analysis, witness statements,

investigations analysis” cad “pictures of

the accident scene" concerning the 841

incident. One of the routine uses of the

system is "to identify and monitor airmen

involved in accidents,” and the data is

retrievable "by name, date of birth, and

sex, social security numbers, airmen num-

bers and accident numbers." If any part of

this description is incorrect, defendants

have violated subsection (e)(4) of the

Privacy Act. If the description is correct

but the information is not retrievable as

proclaimed, then defendants have violated

subsection (e) (5) of the Privacy Act.21l

Furthermore, since the missing data

played a part in a determination of prob-

able cause adverse to plaintiffs, such

utilization itself required integration of

all supporting data into defendants’ sys-

tem.22 The negative response of defend-

dants' system also raises questions about

evasions of the Privacy Act through sub-

dividing or organizing a system "so that

information which would otherwise have

been subject to the Act is no longer sub-

ject to the Act. For example...a separate

index file to retrieve records by

name."23

2lchapman v. NASA, 682 F.2d 526,

528-530 (llth Cir. 1982).

22tbid.

230mB Guidelines, 40 F.R. at 28963,

quoted in Clarkson v. IRS, 678 F.2d 1368

(llth Cir. 1982), p. 1377, note 15.

4. The exercise of this Court's cer-

tiorari jurisdiction is seriously burdened

by the assertion of what amounts to dis-

cretionary review authority by three prior

tribunals--an administrative agency and

two courts--who, in the name of expedi-

tion, have denied evidentiary hearings

without adequate explanation of their

reasons.

Despite the notoriety of this case,

the flight deck crew have been repeatedly

denied access to any public forum where

they could explain their own conduct and

cross-examine the faceless Boeing experts

who have charged them with unprofessional

conduct.

Each time they have been denied a

forum, denial has been based on the de-

sireability of "summary proceedings."

Thus, in the name of expedition, they were

denied participation (over a dissent) in

the NTSB proceedings (A 57); then, under

the rubric of "summary judgment," they

were denied a jury trial in their defama-

tion action--without being allowed any

discovery. Finally, in the name of ex-

pedition, these prior denials have been

summarily approved by an appellate court

in a legal memorandum that cannot be

published.

Summary dispositions of this kind give

neither the appearance nor do they yield

the substance of quality decisions, es-

pecially in the cumulative effect of add-

ing one summary procedure to another. See

Professors Reynolds and Richman article

reaching these conclusions, "An Evaluation

of Limited Publication in the United

States Courts of Appeals: The Price of

Reform, 48 U. Chi. L. Rev. 573, 584.

There is an ancient common law remedy:

more jury trials and fewer trials on af-

fidavits. This case perfectly illustrates

the point. Three denials of a public forum

have not quieted suspicions but fired

them, and what was said by Learned Hand in

Bozant v. Bank of N.¥., 156 F.2d 787, 790

(2d Cir. 1946) is peculiarly applicable

here.

In conclusion we cannot avoid ob-

serving that the case is another mis-

taken effort to save time by an at-

tempt to dispose of a complicated

state of facts on motion for summary

judgment. This is especially true when

the plaintiff must rely for his case

on what he can draw out of the de-

fendant....It appears to be somewhat

difficuit to persuade the district

courts of this, but we are satisfied

that it is true.

CONCLUSION

This Court should therefore grant the

writ of certiorari. After review the case

should be reversed and remanded for a

thorough exploration of the issues through

ee Ce ee

discovery, after which defendants’ summary

judgment motions may be considered in

light of the data uncovered in the dis-

covey process.

LANDON DOWDEY

Counsel to petitioners

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.