Miller v. Rich, CV 87-0183-AHS(Bx).

• Decision Date: 20 June 1989
• Docket Number: No. CV 87-0183-AHS(Bx).,CV 87-0183-AHS(Bx).
• Citation: 723 F. Supp. 505
• Parties: Ronald S. MILLER, Plaintiff, v. Jeff RICH and National Transportation Safety Board, Defendants.
• Court: U.S. District Court — Central District of California

723 F. Supp. 505

Ronald S. MILLER, Plaintiff, v. Jeff RICH and National Transportation Safety Board, Defendants.

No. CV 87-0183-AHS(Bx).

United States District Court, C.D. California.

June 20, 1989.

Arthur Wasserman, Van Nuys, Cal., for plaintiff.

Robert C. Bonner, U.S. Atty., and Frederick M. Brosio, Jr., Asst. U.S. Atty., Chief, Civ. Div., and James R. Sullivan, Asst. U.S. Atty., Los Angeles, Cal., for defendants.

STOTLER, District Judge.

I FINDINGS OF FACT

1. On January 1, 1987 a civil North American T-28C¹ single-engine aircraft ("North American N9022Y") crashed in an open field south of the Van Nuys Airport, Los Angeles, California. Pretrial Conference Order, Section V, para. 1.

2. One of the two occupants of North American N9022Y was killed, the other sustained minor injuries. Id., para. 2.

3. North American N9022Y crashed after its single engine failed totally. The cause of the engine failure has not yet been determined. Id., para. 3.

4. North American N9022Y's engine was a Wright R-1820-86, a nine-cylinder radial engine of 1820 cubic-inches displacement. Id., para. 4.

5. Plaintiff Ronald S. Miller had an ownership interest in North American N9022Y at the time of the accident. Id., para. 5.

6. Defendant National Transportation Safety Board is required by law to investigate all civil aircraft accidents in the United States to determine and publicly report the facts, conditions, circumstances, and probable cause of such accidents. Id., para. 6.

7. The NTSB issues safety recommendations to government agencies and private organizations to reduce the likelihood of recurrence of transportation accidents. Id., para. 7.

8. The NTSB is empowered by law to examine and test to the extent necessary any civil aircraft, aircraft engine, propeller, appliance, or property aboard an aircraft involved in an accident in air commerce. Id., para. 8.

9. The Secretary of Transportation and his representative are entitled by law to participate in NTSB investigations of aircraft accidents. Id., para. 9.

10. Defendant Jeffery R. Rich was and is an NTSB Air Safety Investigator and the designated NTSB Investigator-In-Charge of the NTSB field investigation of the North American N9022Y accident. Defendant Rich is assigned to the NTSB Los Angeles Regional Office. At the time of the accident, the NTSB Los Angeles Regional Office was known as the NTSB Los Angeles Field Office. Id., para. 10 11. Defendant Rich, as Investigator-In-Charge, is responsible for organizing, conducting, and controlling the NTSB field investigation. Id., para. 11.

12. The Investigator-In-Charge may designate "parties" to "participate" in its aircraft accident investigations as those terms are used in 49 C.F.R. § 831.11. Id., para. 12.

13. "Parties" to an NTSB field investigation are limited to those persons, government agencies, companies, and associations whose employees, functions, activities, or products were involved in the accident and who can provide suitable qualified technical personnel to actively assist in the field investigation. Id., para. 13.

14. The designation of "parties" is at the discretion of the Investigator-In-Charge. The Investigator-In-Charge's determination is made on a case-by-case basis. Id., para. 14.

15. The Investigator-In-Charge's decision whether to designate any "party" to an NTSB accident investigation is based upon the Investigator-In-Charge's assessment of whether such participation will assist the NTSB investigation. Id., para. 15.

16. "Parties" assist the NTSB in its investigations under the direction of the Investigator-In-Charge, who may remove them if they fail to perform their duties, or if they conduct themselves in a manner prejudicial to the investigation. Id., para. 16.

17. Defendants have custody of North American N9022Y's engine and propeller for disassembly and further detailed examination. Defendants do not retain control over any of the other portions of the aircraft wreckage, which have been released to plaintiff. Id., para. 17.

18. Defendants have selected the Northrop Institute of Technology as the site for their disassembly and further examination of North American N9022Y's engine and related components. The Northrop Institute of Technology has all of the factory recommended tools and equipment to properly conduct the examination. Id., para. 18.

19. Plaintiff does not object to the engine examination being conducted at the Northrop Institute of Technology. Id., para. 19.

20. NTSB powerplant engineer Paul L. Baker has been assigned to conduct the engine examination. Mr. Baker has extensive experience with the Wright R-1820 type engine. Id., para. 20.

21. Northrop Institute instructor James Hilley will assist in the physical disassembly of the engine. Mr. Hilley has extensive experience with the Wright R-1820 type engine. Id., para. 21.

22. FAA inspector Don Skunberg will participate in the engine examination. Mr. Skunberg has extensive experience with the Wright R-1820 type engine. Id., para. 22.

23. Defendants do not require any additional technical assistance to thoroughly conduct the NTSB's disassembly and examination of North American N9022Y's engine. Id., para. 23.

24. Defendants have denied and continue to deny plaintiff's request to observe and memorialize their disassembly and examination of North American N9022Y's engine. Id., para. 24.

25. NTSB regulation 49 C.F.R. § 831.12(a) restricts "access" to aircraft wreckage to NTSB personnel and persons authorized by the NTSB to participate in the NTSB's investigation, examination or testing. Id., para. 25.

26. NTSB regulations do not make any provision for allowing persons to merely observe an NTSB investigation, examination or testing. Id., para. 26.

27. Permitting plaintiff, or his agent, to observe the NTSB's engine examination would grant plaintiff access to the aircraft wreckage.

28. Plaintiff, or his agent, are not entitled to "access" to North American N9022Y's engine as "access" is used in 49 C.F.R. § 831.12. Id., para. 27.

29. North American N9022Y's engine had been overhauled shortly before the accident and only had approximately 10 hours operating time when it failed. Id., para. 28.

30. Plaintiff has a personal interest in the results of the NTSB engine examination because plaintiff has claims or potential claims against the company which overhauled North American N9022Y's engine. Id., para. 29.

31. Plaintiff has a personal interest in the results of the engine examination because plaintiff is a defendant in wrongful death litigation arising from the accident. Id., para. 30.

32. Plaintiff has a personal interest in learning the cause of the North American N9022Y accident. Id., para. 31.

33. If plaintiff were allowed to observe the NTSB's disassembly and examination of the engine, plaintiff would be the only person present with a personal interest in the results. Id., para. 32.

34. It is customary for the authorized participants to openly and candidly discuss their ideas and observations throughout an NTSB engine examination. It is essential to the NTSB investigation that the participants' ideas and observations be freely communicated to one another during the examination.

35. It would not be an abuse of discretion to conclude that plaintiff's presence during the NTSB engine examination would seriously inhibit the free exchange of ideas and information among the authorized participants.

36. Any impediment to free discussion and the immediate flow of information among the authorized participants in the NTSB engine examination would interfere with the NTSB investigation. Id., para. 33.

37. Plaintiff's personal interest in the NTSB examination results make it likely that information plaintiff obtained from the examination would be released in an unauthorized manner contrary to NTSB regulations. See 49 C.F.R. § 831.13.

38. The NTSB Investigation Manual-Aircraft Accidents and Incidents (NTSB Order 6200.1A) provision covering parties to NTSB field investigations, formerly page 4-4, has been revised, effective June 27, 1988. As revised, this Manual provision emphasizes that the NTSB's decision whether to grant party status to anyone other than the FAA is based solely upon NTSB requirements and not the needs or interests of individuals. As revised, this Manual provision does not make any reference to the aircraft owner. Id., para. 34.

39. "Observer" status is addressed in the NTSB Investigation Manual which states in part:

The investigator-in-charge may designate properly accredited members of aeronautical organizations, current operators of like equipment, designated military personnel or representatives of a foreign government, as observers to the investigation. ... Persons not qualified in the above categories shall not be granted observer status during the investigation phase of the inquiry.

NTSB Investigation Manual. Id., para. 35.

40. "Observer" status is limited by the NTSB Investigation Manual:

Personnel so accepted as observers will be on the headquarters staff and will be given factual information on a `need to know basis'.... Although observers may be authorized attendance to the initial organizational and final `wind up' meetings, they will not be authorized to attend any progress meetings which the IIC might convene. The observers will be given factual information by the IIC.

NTSB Investigation Manual. Id., para. 36.

41. The NTSB Investigation Manual provides for "observers" only on investigations conducted by the NTSB headquarters staff. The NTSB only has headquarters staff on major investigations conducted by its Washington, D.C. based Investigators-In-Charge. Id., para. 37.

42. Defendant Rich, as Investigator-In-Charge, exercises the authority of the Director, Bureau of Field Operations, to designate parties to NTSB investigations. Id., para. 38. The Director, Bureau of Field Operations, has directed all NTSB field office personnel, including defendant Rich, that no observers are...