No Judicial Review of NTSB Reports

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July 31, 2015
Brandt Madsen
SmithAmundsen Aerospace Alert

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The D.C. Circuit rejected a plaintiff’s attempt to overturn an National Transportation Safety Board probable cause finding in the courts.

Yatish Joshi is the father of the pilot of a Cessna 206 that crashed on April 22, 2006, killing all on board. The NTSB found the cause of the crash to be pilot error: “the pilots continued descent below decision height and not maintaining adequate altitude/clearance from the tress while on approach.

The pilot’s father gathered additional evidence and retained his own investigators and engineers to issue a supplemental report.  The father’s report found that the accident was caused by evasive actions necessitated by another aircraft’s close proximity to his daughter’s flight. The NTSB allowed submission of the new material but found the evidence and conclusions unpersuasive; standing on their original probable cause finding.

Joshi brought this action in the United States Court of Appeals for the D.C. Circuit, challenging the NTSB’s report and denial of his petition for reconsideration based on § 1153 (a).  Joshi v. National Transportation Safety Board, 2015 WL 3797881, ___ F. 3d ___ (2015.)  49 U.S.C .§ 1153 (a) provides:

The appropriate court of appeals of the United States or the United States Court of Appeals for the District of Columbia Circuit may review a final order of the National Transportation Safety Board under this chapter. A person disclosing a substantial interest in the order may apply for review by filing a petition not later than 60 days after the order of the Board is issued.

The Joshi court found that the report and the denial of reconsideration were not “final orders,” and therefore the case was dismissed for lack of jurisdiction. In reaching this decision, the court first found that the NTSB process is a “fact-finding proceeding with no formal issues and no adverse parties.”  The court also held that, the report is not an adjudication: “it merely analyzes accidents and recommends ways to prevent similar accidents in the future.” Moreover, the NTSB’s actions “clearly had no legally binding affect.” Since the NTSB report and determination did not “determine rights or obligations where it gave rise to legal consequences,” it did not give this court jurisdiction to review “final orders of the National Transportation Safety Board.” The court did strain a bit in reconciling that the report and reconsideration are the “consummation of the agency’s decision-making process regarding Joshi’s evidence;” nevertheless, the report is not a “final order” that would empower this court with jurisdiction to review the NTSB’s findings.

The court did not give an example of which NTSB order would be a “final order” pursuant to § 1153 (a). Clearly, according to the D.C. Circuit, it does not apply to the Factual Report, the Probable Cause Report or to decisions on Petitions for Reconsideration.