Thomas Brooks Chartered, a Professional Corporation v. James Burnett, Norman Wiemeyer, and the National Transportation Safety BoardThomas Brooks Chartered, a Professional Corporation v. James Burnett, Norman Wiemeyer, and the National Transportation Safety Board
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.
I. BACKGROUND
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,
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. § 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....”
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.
(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.”
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
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,
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. § 1903(a)(2);
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.
Consistent with its fact-finding mission that is litigation neutral, NTSB reports are barred as evidence in court. 49 U.S.C.App. § 1441(e) (“No part of any report or reports of the National Transportation Safety Board relating to any accident or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such report or reports.”).
See also
49 U.S.C.App. § 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.”
The restrictions on testimony are limited to NTSB employees and former employees.
See
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.
II. FACTS
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 testing and parties to the investigation were named. The parties included the aircraft manufacturer, Beech Aircraft, along with the engine manufacturer, Avco-Lycoming. Philmont Scout Ranch was also designated as a party. Wiemeyer did not, however, designate the plane’s owner, Thomas Brooks, Chartered, a Colorado Professional Corporation (“Brooks”), as a party.
Wiemeyer made the decision not to include Brooks after reviewing pilot and aircraft records Brooks supplied. Wiemeyer determined Brooks’ records were all that was needed for the NTSB study and there was no need for further contact with the owner of record in regard to the aircraft or pilot.
Thereafter, Wiemeyer was contacted by an attorney representing the deceased pilot’s family. The attorney asked for permission to observe the aircraft evaluation. That request was subsequently rejected based on Wiemeyer’s belief the attorney represented claimants and, as such, was barred from attending the investigation under NTSB rules.
The NTSB General Counsel supported Wiemeyer’s decision in a letter to the family attorney. Referring to the Board's enabling statutes, rules, and Investigator’s Manual, the letter gives the reasons for
A determination has been made that the investigator in charge does not have a specific need for any additional expertise. Moreover, you did not make a showing to Mr. Weimeyer [sic] that you could provide specialized expertise which he needed.
An agreement has been made that, at the completion of the teardown, the disassembled engine will be returned to the registered owner in accordance with Board Rule 831.12(b), formerly Rule 831.-10(b).
In view of the foregoing and in light of the fact that the Board’s procedures make no provision for observers to the teardown, the Board’s determination is that neither you nor your representative may observe the teardown.
Within a reasonable length of time after the teardown, a public docket that contains all the documents that comprise the Board’s factual investigation of this accident will be created and will be available to any interested person who requests a copy from the NTSB....
The letter concludes by referring to the opportunity the attorney will have to depose investigators following the NTSB accident review.
The instant case was commenced in the district court following receipt of the NTSB letter by Brooks. Brooks claimed: (1) the NTSB abused its discretion and could not lawfully bar the owner of a plane from being present at the investigation concerning its crash; (2) the NTSB was arbitrary and capricious in refusing to allow Brooks to attend the investigation; and, (3) the NTSB decision was a taking of property without due process in violation of the Fifth Amendment.
The district court granted a preliminary injunction forbidding any disassembly, dismantling, or destructive inspection of the plane unless a Brooks observer was present. The court further ordered that Brooks’ observer should be a technically qualified FAA airframe and powerplant mechanic. The order allowed the observer to take notes, but provided he could not take photographs or speak unless spoken to. The order finally granted the investigator-in-charge the power to exclude the observer if any conditions of the order were violated.
The district court subsequently granted Brooks summary judgment and made its preliminary injunction permanent. In so doing, it read the Independent Safety Board Act, 49 U.S.C.App. §§ 1903(b)(2), 1905, and saw in it no hint of a Congressional desire to bar an owner’s representative from watching the NTSB team work. The court held it was an abuse of discretion for the NTSB to include manufacturers as parties without also including the aircraft owner. 6
III. ANALYSIS
NTSB makes two arguments. First, it contends that its decision to bar Brooks’ representative from observing the accident investigation was neither arbitrary nor capricious, and was not an abuse of discretion. The Board secondly asserts that the decision on who may attend an investigation is committed, by statute, to the agency’s discretion. The Board therefore reasons that its decision is unreviewable in the district court. Because the second argument implicates the jurisdiction of the lower court and, ipso facto, our review, we begin with it.
A.
At the outset, we note that a determination of the district court’s subject matter jurisdiction is a question of law reviewable de novo on appeal.
McCarthy v. United States,
We begin our analysis with the Administrative Procedure Act’s (“the APA”) provisions governing review of agency action. Judicial review of agency action is generally allowed except where “statutes preclude judicial review,” or where “agency action is committed to agency discretion by law.”
Congress has not expressly forbidden review of actions by the NTSB. In fact, in the NTSB enabling act Congress specifically provides that “[a]ny order, affirmative or negative, issued by the Board” is subject to review in the court of appeals. 49 U.S.C.App. § 1903(d). Review is in accordance with the APA. Id.
Reading this provision, we see that Congress has evinced no express statutory intent that decisions by the NTSB are precluded from judicial review under
The questions remains, however, whether some actions by the NTSB are committed to its discretion by virtue of
In
Chaney,
the Court was faced with a decision by the Food and Drug Administration wherein the agency declined to commence an enforcement action. The Court referred to the decision not to act as an example of a decision committed to agency discretion by law. The Court concluded an agency is free to refrain from acting absent a Congressional enactment withdrawing discretion and commanding performance.
Chaney,
We, however, are not faced with a situation where the NTSB refuses to make a decision or take some action. The NTSB affirmatively decided that Brooks would not be allowed to participate in, or even observe, its official investigation into the crash of its plane.
See
majority op. at p. 640. And under
Chaney,
“when an agency
does
act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers.”
Affirmative agency action is also reviewable where the agency purports to act pursuant to its own rules, rather than a statute. The failure of an agency to follow its own regulations is challengeable under the APA.
Service v. Dulles,
Thus, this case is readily distinguishable from our decision in
Laramie County.
In
Laramie County,
there were no objective guidelines for the federal agency to follow when it decided to end a federal grant that had been given to a local group.
Laramie County,
We further note that, to the extent Brooks challenges the constitutionality of the NTSB decision, the matter is also reviewable in court.
Webster v. Doe,
B.
Having determined that the NTSB decision barring Brooks from the accident investigation is judicially cognizable, we proceed to the merits. NTSB argues it was neither arbitrary nor capricious, and that it did not abuse its discretion, when it made the decision to keep Brooks out. In response Brooks argues just the opposite. He further suggests the NTSB’s attempt to forbid his observation of the investigation violates the Fifth Amendment. In answering these contentions, we first stop to address the standard of review.
See, e.g., Overton Park,
Both parties are correct in urging us to apply the statutory “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” standard of
An agency’s action will be set aside as unlawful if we are able to discern the agency “relied on factors which Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”
Motor Vehicle Mfrs. Ass’n,
We further recognize that although the agency’s action may have first been considered by the district court, we accord the district court’s decision no particular deference on appeal.
Webb v. Hodel,
Turning now to the NTSB’s principal argument on appeal, the Board makes three points. It asserts that the district court: misread NTSB’s governing statutes and regulations; ignored or misapplied relevant ease law; and, finally, wrongfully imposed its own views of procedural fairness on the Board.
The NTSB believes a correct reading of the applicable statutes and regulations provide only for the federal government— namely the Federal Aviation Administration — to participate in an NTSB inquiry as a matter of right. Otherwise, it feels the Board acting through the investigator-in-charge has discretion on who will participate or observe. The NTSB says the decision on who to admit is, and must be, made on a case by case basis. The decision, it maintains, turns on whether the potential party is able to assist the investigation in a meaningful way.
The district court came to a different conclusion. It said 49 U.S.C.App. § 1903(b)(2) of the Independent Safety Board Act reveals no hint that Congress meant to ban a representative of the owner from observing. In addition, it said references to public access to information in § 1905 lend weight .to Brooks’ position.
See
majority op. at n. 6. The court relied on a Ninth Circuit case to support its holding.
Miller v. Rich,
The plaintiff in
Miller I
was the owner of a single-engine plane that crashed, killing one of the two occupants. Miller requested that his representative be on-hand to observe the engine disassembly. But the NTSB refused and the district court subsequently denied Miller’s application for an injunction. The Ninth Circuit, on appeal, reversed and remanded because it believed the NTSB abused its discretion by denying Miller’s request without offering any explanation. It rejected the NTSB’s position that no reason need be given for the denial when the NTSB argued it possessed absolute authority regarding who to admit to its inspections.
Miller I,
At the time of the circuit court’s decision, the NTSB manual on conducting aircraft crash investigations specified that an owner should be allowed to participate.
Id.
at 192. However, by the time the case was heard on remand the NTSB had revised its manual, deleting the language that called for treating aircraft owners differently from others who seek party status.
Miller II,
In this case, the district court distinguished the denial of an injunction in Miller II because that judge was not faced with a situation where the manufacturer’s representatives were members of the team of parties to the exclusion of the owner. The lower court here felt that any NTSB fears concerning the potential adverse impact on free discussions due to the owner’s presence were not applicable. We disagree and believe the rationale of Miller II is even more persuasive where an owner seeks to insinuate himself into an investigation that already includes a potential adversary in forthcoming civil litigation. The likelihood that the owner’s presence would hinder the free exchange of ideas between the NTSB and manufacturer, thereby compromising the NTSB investigation, is plain.
We do not concur with the district court’s interpretation of the statutes. Section 1903(b)(2) is directed at employees of the Board, and authorizes them to “enter any property wherein a transportation accident has occurred or wreckage from any such accident is located and do all things therein necessary for a proper investigation.... ” 49 U.S.C.App. § 1903(b)(2). In conducting their accident tests, the provision requires NTSB employees to reduce interference with remaining transportation services and to preserve, to the maximum extent feasible, any evidence relating to the transportation accident “consistent with the needs of the investigation and with the cooperation of [the] owner or operator.” Id. (emphasis added). Nothing in this provision expressly issues an owner an automatic admission ticket to an NTSB investigation. 9
We further find the legislative history of section 1903 supports our view. The statute refers to evidence gathering by the NTSB and calls on the NTSB to cooperate with owners to the extent possible to avoid unnecessary litigation about uncovering evidence.
If, however, arrangements cannot be worked out, the NTSB
has the authority to secure an immediate court order as necessary to obtain evidence and conduct examinations or tests. Thus, consent of the owner is not a precondition to NTSB conducting examinations or tests consistent with the needs of the investigation.
H.R.Rep. No. 97-108, Part II, 97th Cong., 1st Sess., reprinted in 1981 U.S.Code Cong. & Admin. News 1736-37. In this case, the NTSB received the input it needed from Brooks when it asked for, and received, its aircraft records. Slip op. at p. 10. Assuming without deciding that section 1903(b)(2) applies to this investigation, slip op. at n. 9, both Brooks and the NTSB complied with the statute by cooperating with each other regarding the aircraft’s records. We read no additional requirement into the statute about Brooks’ attendance at the subsequent NTSB investigation except to stress again that the statute clearly focuses the Board’s attention on the “needs of the investigation,” and not on the desires of the owner. 49 U.S.C.App. § 1903(b)(2).
Moreover, we believe the district court implicitly recognized Brooks would not help this investigation when it ordered he would have to be completely silent during any meeting he went to, and that he could only take notes and not speak unless spoken to. The district court apparently imposed its own idea of proper conduct you would rightly expect to find in civil litigation that determines tort liability. But the district court’s view is not consistent with the purpose of the NTSB probe. “Wherever the parties may stand with respect to each other under applicable tort law, they stand on much different footing vis-a-vis the NTSB’s investigation.”
Graham v. Teledyne-Continental Motors,
The district court’s order will also, if taken to its logical boundaries, result in unwieldy NTSB investigations. In this case the court ordered a single observer to be present at every NTSB meeting concerning the crash. It is possible, however, the expert the court made room for will not be qualified to observe with understanding each aspect of the NTSB inquiry. If something comes up beyond the scope of the authorized observer’s qualifications, the entire probe may be halted while the plaintiff attempts to find a suitable replacement. Additionally, the NTSB may elect to have certain tests conducted by outside experts while continuing to meet on the accident as a whole. In that event, a plaintiff could further complicate the investigation by insisting that a separate representative be present for each outside test while the first observer continues to watch the primary accident-related discussions. Finally, should the rule announced by the district court be extended to investigations of major aircraft accidents involving many individuals, it is conceivable the NTSB would be forced to make room for dozens of out
In insisting he should attend, Brooks suggests — without providing any evidence — that having the manufacturer present without the owner compromises the integrity of the NTSB factual report. In making this suggestion, Brooks contends the manufacturers actually run the investigation while the NTSB takes a back seat. He sees the official investigation as little more than a cover-up by manufacturers. Under Brooks’ scenario, a verdict pinning an accident’s cause on pilot error instead of on a manufacturer’s product is preordained whenever the owner does not go to the NTSB meetings. In making these charges, Brooks ignores the checks built into the statutes and NTSB rules that help ensure the investigation’s credibility.
First, NTSB’s reports are freely available to anyone. 49 U.S.C. App. § 1905(a). However, as a protection for plaintiffs Congress forbids an NTSB probable cause determination from being introduced as evidence in a related tort case. Only factual aspects of an NTSB report may be used. 49 U.S.C. App. §§ 1441(e), 1903(c). Second, after the NTSB investigation the aircraft and its component parts are returned to the owner so he may commence an independent investigation and compare his findings to those of the NTSB.
The NTSB explained its reasons for denying Brooks admission, slip op. at 11, and reiterated those justifications to the district court. Reviewing the Board’s explanation, we do not believe it relied on factors that Congress did not intend it to consider, or that it entirely failed to consider an important aspect of the problem. The proffered explanation does not run counter to the evidence in the record and is certainly not implausible. Accordingly, we hold the NTSB was neither arbitrary nor capricious, and did not abuse its discretion or act contrary to law when it barred Brooks from its official investigation. We find our holding is supported by
Graham,
wherein the court was faced with a similar case of a deceased pilot’s representative seeking admission to an NTSB engine teardown. The court determined the pilot’s representative could add “nothing unique” to the investigation, and upheld the NTSB decision keeping the representative out.
Graham,
Finally, Brooks also asserts that barring him from the investigation constitutes an impermissible taking of property in violation of the Fifth Amendment. We find no merit to this claim. As we have noted, Brooks gets all of his property back after the NTSB completes its inquiry. In the unlikely event that something happens to the property while the NTSB is supervising its testing by the manufacturer, he has at his disposal all the “sanctions available to punish those who [wrongfully] alter or destroy evidence.”
Graham,
IV. CONCLUSION
The decision of the NTSB denying Brooks admission to the official investigation concerning the crash of his plane was not a decision the district court was prevented from reviewing either by statute, or by virtue of the decision being committed to the NTSB’s discretion by law. To the extent the NTSB decision implicated the Constitution, the district court also had the power to review it. Having so held, we further conclude that the NTSB decision barring Brooks from the investigation was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Therefore, the judgment of the district court is REVERSED and its permanent injunction is VACATED.
Notes
. Two statutes govern the operation of the Board. The Independent Safety Board Act, 49 U.S.C.App. § 1901 et seq. establishes the Board and requires it to:
investigate or cause to be investigated (in such detail as it shall prescribe), and determine the facts, conditions, and circumstances and the cause or probable cause or causes of any—
(A) aircraft accident ... pursuant to title VII of the Federal Aviation Act of 1958, as amended;
49 U.S.C.App. § 1903(a)(1)(A) (1988).
The Federal Aviation Act states:
It shall be the duty of the National Transportation Safety Board to—
(2) Investigate [aircraft] accidents and report the facts, conditions, and circumstances relating to each accident and the probable cause thereof;
(3) Make such recommendations to the Secretary of Transportation as, in its opinion, will tend to prevent similar accidents in the future;
(4) Make such reports public in such form and manner as may be deemed by it to be in the public interest; ....
49 U.S.C.App. § 1441(a)(2)-(4) (1988).
. The foundation for the present day NTSB was initially laid in 1958 when Congress passed the Federal Aviation Act, 72 Stat. 731, 782 authorizing "creation of special boards of inquiry to investigate accidents which involve substantial questions of public safety in air transportation.” H.R.Rep. No. 2360, 85th Cong., 2d Sess., reprinted in 1958 U.S.Code Cong. & Admin. News 3741, 3757. In 1966 the NTSB was designated as a subordinate agency within the Department of Transportation. It held that status until the mid 1970's when Congress made it a "totally separate and independent agency.” S.Conf.Rep. 93-1347, 93d Cong., 2d Sess. reprinted in 1974 U.S.Code Cong. & Admin. News 7669, 7694. See 49 U.S.C. App. § 1902(a).
When Congress redesignated the Board it recognized its outstanding record of investigating aviation accidents. S.Conf.Rep. 93-1347, 93d Cong., 2d Sess. reprinted in 1974 U.S.Code Cong. & Admin. News 7669, 7698. The parties do not dispute that record in this case nor do we have any reason to doubt the independence and integrity of the Board.
> The statement signed by the parties provided:
It is understood that a party representative to an investigation may not be a person whoalso represents claimants or insurers. The placement of a signature hereon constitutes a representation that participation in this investigation is not on behalf of either claimants or insurers and that, while any information obtained may ultimately be used in litigation, participation is not for the purposes of preparing for litigation.
By placing their signatures hereon all participants agree that they will neither assert nor permit to be asserted on their behalf, any privilege in litigation, with respect to information or documents obtained during the course of and as a result of participation in the NTSB investigation as described above. It is understood, however, that this form is not intended to prevent the undersigned from participating in litigation arising out of the accident referred to above or to require disclosure of the undersigned’s communications with counsel.
. Under the specific prevision of the Federal Aviation Act regarding NTSB investigations of air accidents, the Board is called upon to "provide for the appropriate participation of the Secretary of Transportation and his representatives in any investigations conducted.... ” 49 U.S.C.App. § 1441(g). A similar requirement is imposed by the Independent Safety Board Act establishing the Board. 49 U.S.C.App. § 1903(a)(1).
See, e.g.,
. "[T]he Secretary of Transportation or his representatives shall not participate in the determination of probable cause by the National Transportation Safety Board_” 49 U.S.C.App. § 1441(g). "Any investigation of an accident conducted by the Board ... shall have priority over all other investigations of such accident conducted by other Federal agencies.” 49 U.S.C.App. § 1903(a)(1).
. The district court's decision was made in a ruling from the bench wherein the judge stated:
The Court will grant the motion for summary judgment and issue a permanent injunction in this case.... I don’t think we're talking about who is going to be part of the investigation team. We're talking very simply about whether a knowledgeable person may be an observer of what this team does in the fact situation where the owner is interested — in this case, the plaintiff — and where in this particular situation a representative of the manufacturer and the engine manufacturer, who certainly have stakes in the outcome of this investigation, are going to be part of this investigation team or observers.
I have looked at the statute; and for the record, we’re talking more specifically about49 United States Code section 1903(b)(2) . There is nothing in 1903(b)(2) which would indicate or] even hint that Congress does not want a representative, a qualified representative of the owner to be an observer of what their team is doing. I’ve also looked at the other sections cited; and if anything, those sections lend weight to the position of the plaintiff and not the position of the defendant. For example, 1905 talks about public access to information.
Where we have this particular situation, where the manufacturer's rep and the engine manufacturer’s representatives are going to be there and are going to be participating or observing — I’m not sure if they’re actually going to be participating, or observing — the free exchange of ideas certainly is going to be inhibited no more by having the owner present, where you already have these representatives present. If free interchange is going to be inhibited, it’s going to be inhibited with these representatives present.
But in any case, in this particular situation where you do have these parties present and then you are saying we’re not going to allow observer status — not team status, because we’re not talking about them being a part of the team, but observer status to the owner’s representatives — to me it’s just rather obvious that it is an abuse of discretion; that it is arbitrary and capricious.
. On appeal, the Board waives its contention made in the trial court that summary judgment is precluded because genuine issues of material fact are unresolved.
See
. The investigator-in-charge states the following in his affidavit:
After my preliminary examination I selected parties to the investigation in accordance with the criteria set forth inSection 831.11 of the NTSB Accident Investigation Procedures (49 CFR 831.11) on the basis of need for their active assistance in the technical aspects of the crash investigation.
I focused upon my understanding of Section 304(c) of the Independent Safety Board Act (49 U.S.C. 1903(c)) as the provision had been explained to me, and used by me, on numerous occasions by both the NTSB Denver Office Regional Director and by the NTSB General Counsel.
I made a reasoned determination, based on my understanding of the NTSB regulations, policy, and procedures governing aviation accident investigations, that I would have no need for the presence of a representative ofthe deceased pilot, or the owner of record, to participate in the aircraft evaluation.... (Emphasis added.)
. The Board further argues that