Associate, Adler Murphy & McQuillen LLP
On September 25, 2015, the United States Court of Appeals for the Seventh Circuit held that reports issued by the National Transportation Safety Board (NTSB) are not final orders. In doing so, the Seventh Circuit joined the United States Court of Appeals for the District of Columbia and the United States Court of Appeals for the Ninth Circuit in concluding that such reports do not confer appellate jurisdiction.
In Helicopters, Inc. v. NTSB, No. 15-3028 (7th Cir. 2015), two people were killed in a helicopter crash in Seattle. Helicopters, Inc. (petitioner), an Illinois corporation, owned the helicopter. Pursuant to its statutory duty, the NTSB investigated the circumstances surrounding the incident, as NTSB investigations are used to "ascertain measures" to prevent future incidents. At the end of the investigation, the NTSB publishes a final report that includes factual findings, a probable cause determination, and safety recommendations.
In early September 2015, the NTSB released its factual report outlining the information it had gathered during its investigation, although it had not yet released its probable cause report. Three days later, petitioner sent the NTSB a letter asserting that its factual report omitted significant information, which would render it impossible for the NTSB to reach an accurate determination in its probable cause report. The NTSB responded that it would issue a final accident report which would contain all relevant facts and the probable cause of the accident, and if petitioner disagreed with the final report, it could file a petition for rehearing with the NTSB.
Thereafter, petitioner filed a petition for review with the Seventh Circuit, asking the court to enter a "final judgment" requiring the NTSB to rescind the factual report. To establish jurisdiction, petitioner relied on 49 U.S.C § 1153, which provides federal circuit courts with jurisdiction to review an NTSB "final order."
The Seventh Circuit concluded that it lacked jurisdiction. In so finding, it agreed with the D.C. Circuit and the Ninth Circuit that NSTB factual and probable cause reports are not final orders because they do not create any legal repercussions for the petitioner. Specifically, the Seventh Circuit noted that in Joshi v. NTSB, 791 F.3d 8 (D.C. Cir. 2015), the D.C. Circuit specifically rejected a petitioner's argument that reputational, emotional, or informational harm stemming from a report transformed the report into a final agency order. Thus, the Seventh Circuit rejected petitioner's argument that it would suffer "commercial and reputational harm," opining that the concern was a "practical consequence" as opposed to a legal harm.
Further, the Seventh Circuit relied on the D.C. Circuit's conclusion that the NSTB's denial of a petition for reconsideration was also not reviewable because it was just another stage in the accident investigation procedure and did not impose any legal consequences.
Finally, the Seventh Circuit noted that, if it were to review the report, it would necessarily have to determine whether the factual findings were inaccurate. Therefore, it would be forced to speculate as to whether the future NTSB's probable cause report would be inaccurate.
Recommended Citation: Charlie Ingrassia, Seventh Circuit Joins Two Other Circuits and Holds that NTSB Reports are Not Final and Reviewable, The Brief, (November 6, 2015), http://applawyers-thebrief.blogspot.com/2015/11/seventh-circuit-joins-two-other.html.
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