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Joshi v. National Transportation Safety Board

United States Court of Appeals, District of Columbia Circuit

June 19, 2015

YATISH JOSHI, INDIVIDUALLY, AS EXECUTOR OF THE ESTATE OF GEORGINA JOSHI AND MEMBER OF YATISH AIR, LLC, PETITIONER
v.
NATIONAL TRANSPORTATION SAFETY BOARD AND FEDERAL AVIATION ADMINISTRATION, RESPONDENTS

Argued: March 24, 2015.

On Petition for Review of a Decision of the National Transportation Safety Board.

Brian E. Casey argued the cause and filed the briefs for petitioner. Timothy J. Maher entered an appearance.

Howard S. Scher, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief was Michael J. Singer, Attorney.

Before: GRIFFITH and MILLETT, Circuit Judges, and EDWARDS, Senior Circuit Judge.

OPINION

Page 9

Griffith, Circuit Judge :

After a tragic plane crash, the National Transportation Safety Board (NTSB) completed an investigation and issued a Factual Report and a Probable Cause Report identifying the pilot, Georgina Joshi, as the most likely cause of the accident. The pilot's father, Yatish Joshi, filed a petition asking the agency to reconsider its conclusion in light of new evidence he gathered. The Board denied the petition. Joshi now seeks review of both the NTSB's reports of its investigation and the response to his petition for reconsideration. Because neither the reports nor the response can be considered a final order subject to judicial review, we dismiss this case for lack of jurisdiction.

Page 10

I

On April 20, 2006, a private airplane crashed near the Monroe County Airport in Indiana, claiming the lives of the pilot, Georgina Joshi, and all four passengers. With help from two Federal Aviation Administration (FAA) investigators, the NTSB conducted an investigation of the accident in accordance with its statutory duties under the Federal Aviation Act to determine " the facts, circumstances, and cause or probable cause" of the crash. 49 U.S.C. § 1131(a)(1). The NTSB's purpose in conducting such investigations is " 'to promote transportation safety'" and " 'formulat[e] safety improvement recommendations.'" Graham v. Teledyne-Continental Motors, 805 F.2d 1386, 1389 (9th Cir. 1986) (quoting 49 U.S.C. § 1901(1) (1982)); see also 49 C.F.R. § 831.4 (" Accident and incident investigations . . . are . . . used to ascertain measures that would best tend to prevent similar accidents or incidents in the future." ). The agency does not engage in traditional agency adjudications, nor does it promulgate or enforce any air safety regulations. " Rather, it simply analyzes accidents and recommends ways to prevent similar accidents in the future." Chiron Corp. v. NTSB, 198 F.3d 935, 937, 339 U.S.App.D.C. 188 (D.C. Cir. 1999). At the conclusion of an investigation, the NTSB compiles and publishes a final accident report that contains factual findings, a probable cause finding, and recommendations for any safety improvements thought necessary. See 49 U.S.C. § 1131(e); see also Chiron, 198 F.3d at 939. Such reports are used within government agencies to determine whether to promulgate additional safety regulations. Upon the completion of the investigation of Joshi's crash, the NTSB released a Factual Report and a Probable Cause Report (the Reports). The Factual Report explained the various data the agency gathered, including information on the aircraft, the weather conditions, the airport where Joshi attempted to land, and the state of the wreckage. The Probable Cause Report gave a brief summary of the accident and concluded that it was likely the product of the pilot's actions during the approach to landing.

Petitioner Yatish Joshi, the father of Georgina Joshi, believed that the investigation was not thorough and the Reports were faulty. He took it upon himself to hire an engineering firm to reconstruct the accident by analyzing radar data, air traffic control transmissions, witness statements, and other relevant materials available to the NTSB during the investigation. After gathering evidence, the engineering firm concluded that another plane most likely interfered with Georgina Joshi's flight path and caused her to take evasive action, which caused the crash. Yatish Joshi petitioned the NTSB to reconsider the Probable Cause Report[1] and submitted as new evidence the results of the investigation by the engineering firm, along with a Department of Justice (DOJ) letter addressing the settlement of civil litigation related to the accident.[2] Joshi

Page 11

argued in his petition that the engineering report showed that a second aircraft was operating in the area and contributed to the accident. He also claimed that the civil litigation had revealed that certain FAA failures played a role in the crash, that the FAA had admitted as much in the DOJ letter, and that this merited inclusion in the Probable Cause Report. The NTSB reviewed Joshi's materials, but found that the engineering firm's methodologies were flawed, that its conclusions were not supported by the evidence, and that new witness statements the firm had obtained and relied upon were consistent with the NTSB's original report. The NTSB also addressed the alleged FAA failures and concluded that proper procedures were used and that the DOJ letter Joshi submitted did not show otherwise. Because in its ...


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