PHILADELPHIA – A Philadelphia law firm that sued the National Transportation Safety Board (NTSB) and alleged it illegally withheld information from families and loved ones of crash victims in violation of the Freedom of Information Act has moved to lift the stay on the action.
The Wolk Law Firm (a.k.a. “Arthur Alan Wolk Associates”) of Philadelphia initially filed suit in the U.S. District Court for the Eastern District of Pennsylvania on April 2, 2019, versus the United States of America/NTSB of Washington, D.C.
The plaintiff firm said it is “routinely retained to investigate aircraft accident investigations, and to pursue legal remedies for its clients.”
The lawsuit referred to the NTSB investigations surrounding several matters, including those for the following estates and individuals: Berke Morgan Bates and Henry John Cullen III; Christopher Freeman Byrd, Phillip Armstrong Byrd and Grady G. Byrd III; Lauren Johnson Chase; Arrin Farrar; Troy L. Gentry; William Gordon; Robert and Brenda Hinkle; John Michael and Dawn Skinner; Ryan Lee McCall; Gerald and Diane Stubbs; Gregory Torres; and Diana Soto, Evelyn Walker and James Walker.
“The NTSB is charged with the investigation of civil aviation accidents. The NTSB, according to its own regulation, takes custody of aircraft wreckage and other evidence, including photographic evidence, videos, notes, witness statements and other information after an accident. The NTSB is charged to perform any inspection, examination or test promptly, and to make the results available,” per the lawsuit.
The suit alleged the NTSB instead relies upon manufacturers of civil aircraft and aircraft components to provide technical expertise and help it complete crash investigations – but furthermore, that this relationship has created a situation in which these same manufacturers received unfettered access to and editorial control over crash investigation materials and evidence – the very same access which has been denied to victims of aviation crashes, their loved ones and representative agents.
The suit said this constitutes a violation of the Freedom of Information Act.
However, the NTSB responded with a motion to dismiss through invoking sovereign immunity, arguing that the plaintiff firm fails to state a claim for violation of due process because the rights allegedly violated are statutory and not constitutional.
The firm replied that the NTSB’s alleged information withholding violated the Fifth, Seventh and Fourteenth amendments to the U.S. Constitution and said subject matter jurisdiction over these claims would be appropriate under the Administrative Procedures Act.
However, the NTSB counter-argued that FOIA provided an adequate remedy for the plaintiff, that the plaintiff firm failed to allege the NTSB acted arbitrarily or capriciously in refusing to provide materials not covered by FOIA, that an APA claim was premature because the NTSB has not taken action reviewable under it and that there was no private right to action for obstruction of justice.
“To seek relief under the APA, the plaintiff must assert a claim under it. In the first amended complaint, Wolk does not specifically invoke the APA. But, because it could do so in a second amended complaint, we address the issue now in the interest of judicial economy and efficiency,” U.S. District Court Judge Timothy J. Savage said.
In a separate lawsuit, U.S. District Court Judge Eduardo C. Robreno found earlier this year that Freedom of Information Act exemptions apply to the NTSB’s refusal to provide document and video evidence in a crash investigation involving Don and Ingrid Goldstein.
However, Robreno also found the NTSB provided “no justification to withhold information regarding the Goldstein aircraft wreckage, or the wreckage itself if the NTSB still has it,” thereby granting the NTSB’s motion for summary judgment as to the aforementioned documents and videos, but also ordering the NTSB to “produce chain-of-custody information about the wreckage or make the wreckage available for inspection.”
Savage later chose to stay the instant case.
“FOIA provides for the production of ‘records.’ For purposes of the FOIA, the term ‘records’ does not include tangible objects. Records include videos, but cockpit videos are exempt from production. As Judge Robreno noted in a similar action, ‘wreckage itself cannot be the subject matter of a FOIA request because it is not an ‘agency record’ that could be subject to FOIA.’ Because FOIA does not provide an ‘adequate remedy’ to obtain cockpit videos and wreckage, an NTSB refusal to provide these materials is subject to judicial review,” Savage said.
Savage said that judicial review is limited to administrative record and reiterated that cockpit videos are statutorily exempt from production to any outside party. Furthermore, the judge added the NTSB was not arbitrary and capricious, as it alone had the authority to inspect crash wreckage, would preserve it in its entirety and informed the plaintiff that its findings would be publicly released at the conclusion of its investigation.
According to the federal judge, the claims brought under the Fifth, Seventh and Fourteenth Amendments also failed and were ripe for dismissal: That no federal law or statutory basis was found for the obstruction of justice claim, that no property right was associated with the case which could have been violated under the Fifth Amendment, that no right to a jury trial under the APA could be applied to the case under the Seventh Amendment and the Fourteenth Amendment applies only to the states, not to the federal government.
Savage found on Oct. 10 that the NTSB in fact enjoyed sovereign immunity and shield from suit as a government organization. He ruled that all proceedings were stayed, the clerk was to place the case in suspense, the NTSB was to file a status report regarding the plaintiff’s FOIA requests every 60 days and within 10 days of processing said requests, the NTSB will advise the court that it did so.
On May 12, the Wolk Law Firm filed a motion to lift the stay on the case to access discoverable NTSB investigation material and requested an in-camera status conference on the issue.
“Recent status reports of the NTSB have not provided the full picture to this Court as to the handling of the various Freedom of Information Act requests that has occurred since this matter was stayed. For this reason, plaintiffs seek to lift the stay so the parties can proceed with this matter and address the NTSB’s withholding of documents, and in some instances, failing to respond altogether,” the motion read.
“Plaintiffs further request the Court to schedule a status conference to update the Court on what has been produced, what needs to be subject to an in-camera review, and what remains has still not been produced by the NTSB after this long delay.”
Attorneys from the firm brought the instant action “on behalf of victims of aviation accidents and their families who have been deprived of crucial facts and evidence collected during NTSB investigations that were requested under the FOIA.”
“While access is denied to plaintiffs, the aviation manufacturers (and defendants in civil suits arising from these aviation accidents) have been privy to the information all along and had the opportunity to actively participate in the investigation and even aid in its direction. The NTSB’s Status Reports ignore pending appeals of the NTSB’s denials of certain requests, and given that the NTSB has continued to withhold documents, the time is now ripe for this Court’s review of that withholding,” according to the motion to lift the stay on the case.
Prior to the suspension of the case and for counts of obstruction of justice and violation of due process, violation of 49 C.F.R. Section 837.4 and violation of the Freedom of Information Act, the plaintiff is seeking an order compelling the NTSB to release any and all documents, data and evidence that relates to the crash complained of herein, and such other and further relief as the Court may deem just and proper.
The plaintiff is represented by Cynthia Marie Devers and Michael S. Miska of The Wolk Law Firm, in Philadelphia.
The defendant is represented by Stacey L.B. Smith of the U.S. Attorney’s Office, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-01401
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com