Helicopters, Inc. v. NTSB , 803 F.3d 844 ( 2015 )


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  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 15-3028
    HELICOPTERS, INC.,
    Petitioner,
    v.
    NATIONAL TRANSPORTATION SAFETY BOARD,
    Respondent.
    ____________________
    On Petition for Review from a Decision of
    the National Transportation Safety Board.
    ____________________
    SUBMITTED SEPTEMBER 25, 2015 — DECIDED OCTOBER 13, 2015
    ____________________
    Before MANION, SYKES, and HAMILTON, Circuit Judges.
    PER CURIAM. Helicopters, Inc., filed a petition for review
    asking this court to order the National Transportation Safety
    Board to rescind or withhold reports on a crash involving a
    helicopter operated by the company. We conclude that the
    Board’s reports are not final orders subject to our review, and
    thus we dismiss the petition for lack of jurisdiction.
    2                                                     No. 15-3028
    I
    In March 2014, two people were killed when a news heli-
    copter crashed in Seattle. Helicopters, Inc., a company based
    in Illinois, owned and operated the helicopter involved in the
    crash. The National Transportation Safety Board began an in-
    vestigation of the crash pursuant to its duty to investigate
    “and establish the facts, circumstances, and cause or probable
    cause of” an aircraft accident. 49 U.S.C. § 1131(a)(1); see also 49
    C.F.R. § 831.4.
    The results of the Board’s investigations are “used to as-
    certain measures that would best tend to prevent similar acci-
    dents or incidents in the future.” 49 C.F.R. § 831.4. The Board
    “does not engage in traditional agency adjudications, nor
    does it promulgate or enforce any air safety regulations. Ra-
    ther, it simply analyzes accidents and recommends ways to
    prevent similar accidents in the future.” Joshi v. Nat’l Transp.
    Safety Bd., 
    791 F.3d 8
    , 10 (D.C. Cir. 2015) (citation and internal
    quotation marks omitted). At the end of an investigation, the
    Board publishes a final report that includes factual findings, a
    determination of the probable cause of the accident, and rec-
    ommendations for safety improvements. See 49 U.S.C.
    § 1131(e); 
    Joshi, 791 F.3d at 10
    .
    The Board’s reports have a limited purpose and effect:
    Government agencies use the reports to decide whether addi-
    tional safety regulations are necessary. See 
    Joshi, 791 F.3d at 10
    . The Board’s investigations “are not conducted for the pur-
    pose of determining the rights or liabilities of any person.” 49
    C.F.R. § 831.4. In fact, “[n]o part of a report of the Board, re-
    lated to an accident or an investigation of an accident, may be
    admitted into evidence or used in a civil action for damages
    No. 15-3028                                                   3
    resulting from a matter mentioned in the report.” 49 U.S.C.
    § 1154(b).
    On September 1, 2015, the Board released a Factual Report
    laying out the information it had gathered during its investi-
    gation of the helicopter crash in Seattle. The Board has not yet
    released a Probable Cause Report, which will provide the
    Board’s analysis of the likely cause of the accident. Three days
    later, Helicopters sent a letter to the Board asserting that the
    Factual Report “omits significant information that will make
    it impossible for the Board to reach an accurate determination
    of Probable Cause.” The company requested that the Board
    rescind the Factual Report and refrain from releasing its Prob-
    able Cause Report until “the errors in the Factual Report are
    addressed.”
    The Board responded in a letter that the Factual Report
    was just one part of an ongoing investigation and that, once
    the Board completes its investigation, “it will issue a final ac-
    cident report which will contain all relevant facts, detailed
    analysis … , the probable cause of the accident, and if appro-
    priate, safety recommendations.” The Board also told Heli-
    copters that if after reviewing the final accident report the
    company believed that the findings and determination of
    probable cause were incorrect, Helicopters could file a peti-
    tion for reconsideration with the Board under 49 C.F.R.
    § 845.41. (The company has asked the Board to reconsider its
    Factual Report, but that request remains pending before the
    Board.)
    Helicopters then filed a petition for review with this court.
    The company requested both “interim relief” and a “final
    judgment” requiring the Board to rescind the Factual Report
    and prohibiting the Board from publishing the Probable
    4                                                     No. 15-3028
    Cause Report until the Board addresses the purported inac-
    curacies in the Factual Report or reconsiders the report.
    In its petition for review, Helicopters invokes 49 U.S.C.
    § 1153 as the basis of this court’s jurisdiction. That statute pro-
    vides that a federal court of appeals “may review a final order”
    of the Board. 
    Id. § 1153(a)
    (emphasis added). Because of the
    seeming absence of a final order in this case, we directed the
    parties to brief whether this court has jurisdiction under the
    statute to consider the company’s petition.
    II
    Before addressing the parties’ jurisdictional briefs, we note
    that only two courts of appeals—the D.C. Circuit and the
    Ninth Circuit—have considered whether the reports issued
    by the Board constitute reviewable final orders under
    § 1153(a). See Joshi v. Nat’l Transp. Safety Bd., 
    791 F.3d 8
    (D.C.
    Cir. 2015); Gibson v. Nat’l Transp. Safety Bd., 
    118 F.3d 1312
    (9th
    Cir. 1997). The D.C. Circuit concluded that the Board’s reports
    do not constitute final orders under the statute because “no
    legal consequences of any kind result” from the reports. 
    Joshi, 791 F.3d at 11
    . The D.C. Circuit rejected the argument that rep-
    utational, financial, emotional, or informational harms stem-
    ming from a report issued by the Board transformed the re-
    port into a final agency order that the court has jurisdiction to
    review. 
    Id. at 11–12.
    The court concluded that the Board’s de-
    nial of a petition for reconsideration likewise is unreviewable
    because “reconsideration petitions are simply another stage
    of the accident investigation procedure” and the denial of a
    petition for reconsideration does not “impose any legal con-
    sequences.” 
    Id. at 12.
    The D.C. Circuit’s analysis is consistent
    with the Ninth Circuit’s conclusions that the Board’s denial of
    No. 15-3028                                                    5
    a petition to reopen an investigation “does not constitute an
    ‘order,’” 
    Gibson, 118 F.3d at 1313
    , and that reports of the
    Board’s investigations “do not entail the ‘determinate conse-
    quences’ required of a final order that can invoke” the court’s
    jurisdiction, 
    id. at 1315.
        We agree with the reasoning of the D.C. Circuit in Joshi and
    the Ninth Circuit in Gibson, and conclude that this case is not
    distinguishable from those cases. Neither the Factual Report
    nor the Probable Cause Report are reviewable final orders un-
    der § 1153(a) because the reports do not create any legal re-
    percussions for Helicopters. See 
    Joshi, 791 F.3d at 11
    ; 
    Gibson, 118 F.3d at 1315
    . Helicopters maintains that this case is distin-
    guishable from Joshi and Gibson because the company “is not
    asking this Court to review the contents, conclusions or merits
    of the [Board’s] Factual Report or any future Probable Cause
    Report.” Instead, Helicopters says that it “is seeking review of
    the [Board’s] decision to publish for public consumption in-
    complete and inaccurate information related to Petitioner’s
    involvement in the aircraft accident prior to investigating the
    inaccuracies.” This argument has no merit. As the Board
    points out in its jurisdictional brief, to decide whether Heli-
    copters is entitled to the relief it seeks, this court would have
    to determine whether the Board “has published an ‘inaccu-
    rate’ report.” Thus, to resolve this case, we would have to re-
    view the accuracy of the report. The Board also points out that
    the Factual Report is not final—“it is interlocutory and subject
    to change”—and the company’s claim that the Board’s Prob-
    able Cause Report will be faulty is therefore speculative.
    Helicopters contends that it will suffer “commercial and
    reputational harm” as a result of the Board’s reports, but as
    6                                                    No. 15-3028
    the D.C. Circuit has explained, “these are practical conse-
    quences, not legal harms that can transform the Reports into
    a final agency order[.]” 
    Joshi, 791 F.3d at 11
    –12; see also Bennett
    v. Spear, 
    520 U.S. 154
    , 177–78 (1997) (citation and internal
    marks omitted) (explaining that, for an agency action to be
    considered final, “the action must be one by which rights or
    obligations have been determined, or from which legal conse-
    quences will flow”). The company also argues that this court
    has jurisdiction under the collateral order doctrine. But that
    doctrine doesn’t apply here because, among other things,
    there is no “conclusive decision” by the Board. See Herx v. Di-
    ocese of Fort Wayne-S. Bend, Inc., 
    772 F.3d 1085
    , 1088–89 (7th
    Cir. 2014); Cobra Nat. Res., LLC v. Fed. Mine Safety & Health Re-
    view Comm’n, 
    742 F.3d 82
    , 88 (4th Cir. 2014) (citations omitted)
    (“Clearly, if a court or agency expressly holds open the possi-
    bility of reconsideration, a collateral order appeal should not
    be authorized.”).
    III
    For the reasons set forth in this opinion, we dismiss the
    petition for lack of jurisdiction.
    

Document Info

Docket Number: 15-3028

Citation Numbers: 803 F.3d 844

Judges: Per Curiam

Filed Date: 10/13/2015

Precedential Status: Precedential

Modified Date: 1/12/2023