Thomas Brooks Chartered v. Burnett
| Decision Date | 28 November 1990 |
| Docket Number | No. 89-1378,89-1378 |
| Citation | 920 F.2d 634 |
| Parties | THOMAS BROOKS CHARTERED, a professional corporation, Plaintiff-Appellee, v. James BURNETT, Norman Wiemeyer, and the National Transportation Safety Board, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Windle Turley (Richard N. Countiss and James P. Piper, with him on the brief), Dallas, Tex., for plaintiff-appellee.
Peter R. Maier, Appellate Staff Atty. (Stewart M. Gerson, Asst. Atty. Gen., Michael J. Norton, U.S. Atty., Anthony J. Steinmeyer, Appellate Staff Atty., with him on the briefs), Dept. of Justice, Washington, D.C., for defendants-appellants.
Before ANDERSON and BRORBY, Circuit Judges, and BRIMMER, * District Judge.
The National Transportation Safety Board ("the NTSB" or "the Board") appeals the district court's award of summary judgment holding that the NTSB could not invite manufacturers of a plane and its component parts to participate in an NTSB investigation without also allowing a representative of the individual who was killed in the crash to participate as an observer. We reverse.
The NTSB is the independent federal agency charged with investigating, determining the cause, and making recommendations for future precautions with respect to aircraft accidents. 1 To fulfill this task the Board is given authority 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." 2 49 U.S.C.App. Sec. 1441(c).
Under the applicable enabling statute, the NTSB is authorized to make "rules and regulations as may be necessary to the exercise of its functions." 49 U.S.C.App. Sec. 1903(b)(11). To that end, the Board promulgated a series of rules and regulations governing its investigation of aviation mishaps. Among them is the declaration that Board investigations are "fact-finding proceedings with no formal issues and no adverse parties...." 49 C.F.R. Sec. 831.4. Board inquiries "are not conducted for the purpose of determining the rights or liabilities of any person." Id.
When an investigation commences an investigator-in-charge is selected to organize, conduct, and control the field phase. This individual assumes responsibility for supervising and coordinating all Board and non-Board personnel who are associated with the on-site probe. 49 C.F.R. Sec. 831.8. Among the specific powers given to the investigator-in-charge is the authority to designate participating parties to the inquiry. The regulations provide, in relevant part:
(a) The investigator-in-charge may, on behalf of the Director, Bureau of Accident Investigation, or the Director, Bureau of Field Operations, designate parties to participate in the field investigation. Parties to the field investigation shall be limited to those ... 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.
The regulations contemplate active participation from designated parties to an investigation. However, parties remain accountable to the Board "and may be relieved from participation if they do not comply with their assigned duties or if they conduct themselves in a manner prejudicial to the investigation." 49 C.F.R. Sec. 831.11(b). Also, designated parties who exercise any of the broad investigatory powers of the Board--including the right to inspect, photograph, or copy accident-related documents and records under 49 C.F.R. Sec. 831.9(a)--may not be "represented by any person who also represents claimants and insurers." 49 C.F.R. Sec. 831.11(c). Access to accident-related wreckage and records is restricted to NTSB personnel and investigation participants. 49 C.F.R. Sec. 831.12(a).
The NTSB claims the investigator-in-charge may--as a condition of participation--require parties to waive any objection to civil discovery about their investigatory role in the event litigation commences. In this appeal, the NTSB asserted this waiver is uniformly required from a "product manufacturer designated as a party." (Appellant's Brief at 5.) However, the NTSB cites no authority for this proposition and at oral argument conceded the requirement is merely derived from the implicit authority that an investigator-in-charge possesses and, as such, is discretionary. The record indicates the parties to this investigation signed statements indicating they were not participating for purposes of litigation. 3
The only parties an investigator-in-charge is required to designate are other federal government representatives who are involved in regulating air commerce. Congress specifically calls for the Secretary of Transportation, or his representatives, to join with the NTSB in investigating air accidents. 4 However, investigatory primacy remains with the Board and the Board has exclusive authority to determine the probable cause of an accident. 5
In addition to parties, the investigator-in-charge has discretionary power to allow observers at select portions of an investigation; but admittance through this avenue is strictly limited. The NTSB observer policies are fashioned to allow "aeronautical organizations, current operators of like equipment, designated military personnel or representatives of a foreign government" to be on-hand for "initial organizational and final 'wind up' meetings" only. NTSB Investigation Manual--Aircraft Accidents and Incidents, at 4-12 (1980). The policies contain no clause permitting aircraft owners, representatives of deceased passengers, passengers, or others, to observe NTSB inquiries. Id. at 4-12. See Miller v. Rich, 723 F.Supp. 505, 508-09 (C.D.Cal.1989) (Miller II ) ().
There is no provision in any other statute, regulation, or manual that either requires or expressly permits the investigator-in-charge to admit merely interested persons as participants or observers of an investigation. For example, the news media is typically not allowed to attend an NTSB inquiry. Of course, given the broad authority the NTSB contends it implicitly has, it is conceivable that an investigator-in-charge could open an investigation for viewing by an interested person.
Although access to the investigation itself is strictly limited, the work-product of the NTSB is ultimately public and available to anyone. 49 U.S.C.App. Sec. 1903(a)(2); 49 C.F.R. Sec. 845.50. The work-product encompasses the NTSB report including "all factual information concerning the accident." 49 C.F.R. Sec. 845.50(a). Moreover, the NTSB public docket on an accident is never "officially closed"; rather, it is kept open "for the submission of new and pertinent evidence by any interested person." 49 C.F.R. Sec. 845.51.
Because the NTSB book on an accident is never shut, it is conceivable the NTSB could alter its findings about the cause of an aviation mishap following development of new information by persons not permitted to attend the NTSB inquiry. Any interested person, in fact, may submit proposed findings to the Board regarding an accident's probable cause. 49 C.F.R. Sec. 831.14.
Also, anyone questioned by the NTSB during an investigation is entitled to have a representative, such as an attorney, present with them. 49 C.F.R. Sec. 831.7. Thus, if an owner of a plane is deposed about its crash, or if a family member of a deceased pilot or passenger of a plane is questioned, they may be accompanied by their attorney.
Consistent with its fact-finding mission that is litigation neutral, NTSB reports are barred as evidence in court. 49 U.S.C.App. Sec. 1441(e) (). See also 49 U.S.C.App. Sec. 1903(c). Board employees may give limited testimony concerning the "factual information they obtained during the course of the accident investigation, including factual evaluations embodied in their factual accident reports." 49 C.F.R. Sec. 835.3(b). When making these statements, Board employees may refer to their reports to refresh their recollection. 49 C.F.R. Sec. 835.4. See, e.g., Keen v. Detroit Diesel Allison, 569 F.2d 547, 549-51 (10th Cir.1978) ().
The restrictions on testimony are limited to NTSB employees and former employees. See 49 C.F.R. Secs. 835.3, 835.7. We assume without deciding that the restrictions do not apply to those designated as parties to an accident investigation who are not Board employees.
Finally, the NTSB does not forbid private investigations conducted with an eye toward civil litigation. In fact, after its inquiry the Board releases any wreckage or records it took custody of while conducting its inquiry. 49 C.F.R. Sec. 831.12(b). This material is then available to litigants to use in preparing their cases.
The sad facts underlying this action are undisputed. On August 2, 1988, Thomas W. Brooks was killed when the Beech Musketeer airplane he was piloting crashed on takeoff from the Philmont Scout Ranch near Cimarron, New Mexico. (Appellant's Brief at 8; Appellee's Brief at 3.) After the crash, the NTSB initiated its examination with Norman Wiemeyer of the Denver Field Office appointed investigator-in-charge.
At Wiemeyer's direction the aircraft wreckage was taken to a repair station in Greeley, Colorado, for...
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