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 been granted a motion 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 the NTSB is “routinely retained to investigate aircraft accident investigations, and to pursue legal remedies for its clients” and alleged the NTSB instead relies upon manufacturers of civil aircraft and aircraft components to provide technical expertise and help it complete crash investigations.
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 failed 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 and found on Oct. 10 that the NTSB in fact enjoyed sovereign immunity and shield from suit as a government organization. He then 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.
On May 22, the NTSB responded that it was agreeable to lifting the stay, removing the case from suspense and having a telephonic status conference with the Court to discuss the next steps.
However, the NTSB disagreed with the law firm’s assertion that the stay should be lifted for their failure to follow the previously-stipulated FOIA status update requirements while the case had been stayed.
Savage granted the motion on May 26.
“Pursuant to 5 U.S.C. Section 552(a)(6)(C) and upon consideration of the plaintiff’s motion to lift stay and for status conference and the defendant’s response, it is ordered that the motion is granted. It is further ordered that the Clerk shall transfer this case from the Court’s civil suspense docket to the active docket,” Savage said.
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