Paul J. Kiernan is a Partner in our Washington DC office .
Agency actions may cause people pain and distress but there is not always a judicial remedy. In a decision issued on June 19, the D.C. Circuit rejected the request of a pilot's father to reopen an accident investigation into the plane crash that killed his daughter and her four passengers. Because the accident report cannot be considered a final order with legal consequences, it is not subject to judicial review. See Joshi v. NTSB.
In April 2006, five Indiana University students were killed in a small airplane crash. A subsequent investigation by the National Transportation Safety Board and the Federal Aviation Administration concluded that the error of the student who was piloting the airplane was the probable cause of the crash. The pilot's father, who was also the owner of the airplane, undertook his own investigation, including retaining an engineering firm to reconstruct the accident. The father's investigation concluded that another plane most likely interfered with the flight path, requiring the pilot to take evasive action that caused the crash. The father petitioned the NTSB to reopen its investigation. When the NTSB declined to change its report, the father went to court.
The D.C. Circuit wrote that its jurisdiction under the Federal Aviation Act is limited to review of "final orders" of the NTSB. An accident-investigation report is not such a final order. First, accident investigations are conducted to help determine measures to avoid similar accidents. They are fact-finding proceedings, not adversarial proceedings. Second, no legal consequences flow from the accident reports. The accident investigation's results are not admissible in court, and they do not lead to fines or other consequences.
The father argued that there were real harmful consequences flowing from the NTSB report and the refusal to revise it, including reputational harm and emotional harm. But the Court held that while "[t]he consequences Joshi alleges are surely realities he has faced following the release of the Reports...unless the NTSB's actions result in a legal consequence, we lack the power to review them."
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