# Petition for Writ of Certiorari — Gibson v. Boeing Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1733%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 469 U.S. 1110 ## Text : 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 3 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? ii 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 22 21 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 18 21 22 26 14 21 24 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 & 15 14 26 24 26 23 23 26 15 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 34 35 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 Ve 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. 2 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 3 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). 4 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.” 5 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. 6 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). 4 "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- 8 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 ee 9 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 10 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- li 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- 12 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 13 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- 14 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) 15 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. 16 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). 17 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 18 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 19 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). 20 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. 21 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). 22 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 23 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). 24 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). 25 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). 26 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 27 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- 28 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); (c) the conflict between Boeing 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). ea ; 29 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). 30 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). 31 (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- 32 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- 33 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 34 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 35 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. 36 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 = 37 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- 38 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 39 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1733%3A1. Public record. Not legal advice.