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1034, Yatesh Josie, and individually as the executor of the estate of Georgina Josie and member of the Yatesh Air LLC petitioner versus National Transportation Safety Board at Elle.

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Mr. Casey for the petitioner, Mr. Sherratt for the respondent.

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Good morning, Your Honor, so may it please the Court.

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This case is about whether the most important activities taken by the MPSP, that is investigating fatal airplane crashes and determining the facts of probable cause of those crashes, are reviewable ever by anyone.

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Respondents, largely based on a Ninth Circuit case that has never been cited by any court in any jurisdiction or anything, say that their actions are not revealed.

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The petitioner disagrees.

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The petitioner's position is that if Section 1153 means anything, it means that a person with a substantial interest in an order such as

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such as the NTSB issue has the ability to seek judicial review.

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Is that the question, or is the question whether it's a final order?

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And we have standards for that.

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Let's put the Knight's Circuit case to one side.

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We have standards for that, right?

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And one of the things that we require is that there be some legal consequences from this.

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So what are the legal consequences

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that flow from this order?

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It can't be used in a civil proceeding for damages, right?

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It can't be submitted to evidence, okay?

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So what legal consequences flow from this report?

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Well, just so we are very clear, that is not at all what we are doing, we have any intention of doing.

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This is not a precursor to any kind of civil litigation.

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It's not related to that.

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No, that was just illustrative of the limited use of this and whether it is a final order.

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Well, it is a final order because number one is final, meaning that it is the consummation of the agency's decision-making process.

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They have no intention or they've made no bones about the fact they're not continuing to investigate this.

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There's nothing else that they're going to do.

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As a matter of fact, under their regulations with respect to petitions for reconsideration, once we file the petition for reconsideration, the grounds that we have raised in that petition for reconsideration can't be re-raised.

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So there is no later time where we can raise this again.

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There is no, according to them, later venue in which

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case in which we can actually seek judicial review of this.

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They're saying there is no point at which this is sufficiently final in terms of being their last word such that it ultimately gives rise to judicial review.

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As for your question about the rights and obligations, you'll notice that

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Section 831-4 in their regs specifically says that this is a fact-finding investigation that is not made for the purpose of determining legal rights and obligations.

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As I'm sure you understand, just because they don't have the purpose of it doesn't necessarily mean that it has no purpose.

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So what are the legal consequences?

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What rights and obligations have been adjusted?

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Any number of things.

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Number one, Georgina Joshi is identified on the NTSB's aviation database as being the sole cause of the deaths of five people.

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It's been up there since 2006.

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To the world, that is an educational tool that the aviation community uses to understand why accidents happen and who caused them, and the NTSB is broadcasting to the world that Georgina caused them and only Georgina caused them.

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That is a harm that... What are the legal consequences that flow from that?

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What rights and obligations have changed?

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Both the estate and the father of the estate and the company that owned the airplane have the right not to be wrongfully accused of being... So that's a reputational harm, you're saying?

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It is some manner of reputational harm, sure, and this court and others have said that

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Reputational injury is certainly sufficient to confer article 3 standing.

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So any time an agency does something that could have reputational harm, you think that makes it a final order?

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Well, no, what you're asking is what... You're supposed to be identifying the legal consequences.

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It's not just that it has to be filed.

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It's not just the consummation of the agency process.

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It has to have legal consequences.

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You identified reputational harm.

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Reputational injury is one.

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Financial injury is another.

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A... What's the financial?

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Well, we had to do the job.

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That's practical consequences of your employees.

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It is a practical consequence.

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We are out north of a million dollars in terms of doing the investigation that the NTSB did.

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This court, as a matter of fact, I believe Judge Edwards and Americans for Safe Access talked about $140 in co-pays being sufficient injury in order to merit a review of HHS's decision to how to classify medical marijuana.

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Yeah, but that's a very different situation.

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Litigation or preparing to litigate or doing an investigation.

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The Supreme Court has said that's not sufficient.

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No, what they have said- They made that clear in Skillco and other cases.

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What they have said, Your Honor, is that the costs of litigating aren't necessarily- The cost of preparing yourself to litigate, whatever it is that you decide to go out and pursue an investigation that no one is obliged or required you to do.

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we don't know

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The veteran in Americans for Safe Access unilaterally spent $140 in co-pays because HHS scheduled medical marijuana and therefore he couldn't get it for free.

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But his claim was that he was entitled to get that benefit from the agency.

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flying the planes that are subject to investigations are entitled to an accurate and complete investigation.

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That's what section 1131 states.

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Congress obliges the NTSB to conduct investigations and identify the facts of probable cause of those acts.

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So you see, under your theory, what you're saying is not just at this age, is the

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agency that puts together information and files it as subject to review because when they say we're done, anyone who's distressed with whatever the investigation or review or whatever it was can come in and require us to review it and what are the standards

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the court of appeals, and what are we reviewing?

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Section 1153 is the best exclusive jurisdiction in the court of appeals.

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I know, but what are we reviewing is what I'm saying.

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It doesn't make any sense.

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What are we reviewing?

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The agency says, you know, we've worked around.

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We've done the best we could.

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This is what our investigation has, and we filed it.

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There are no consequences that fall to anyone.

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No one's required to do anything.

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We're not intending to hurt anyone.

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This is what we did.

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And there are agencies that do this all the time.

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I understand there's agencies that do this, that do somewhat of the wrong things.

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And they get it wrong all the time, all the time.

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And if there are no legal consequences, we shut our shoulders.

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Imagine we review all such matters.

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There are consequences that flow to the petitioner.

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As I said, the reputational harm, the financial harm, the procedural injury, he has a right to have it done the right way.

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Informational injury, he is a member of the flying community that still flies into that area.

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You know what your reputational harm would be?

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Is if we really have review powers and we say, we looked at it,

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There's no reason for us to overturn what the agency's done.

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Now we've confirmed it for the world and put it in Fed 3rd and there it is.

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And then the so-called reputational harm that you're worried about would really exist.

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Whereas now it's just something in a file and the agency's not accusing anyone.

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It is in no way something in a file.

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It is on the database.

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It takes three clicks on the database to identify that Georgina Joshi killed five people.

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That is the reality that reputational harm, we're not talking about court action here.

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We're talking about the, from standing purposes, the identifiable trifle that's necessary to confer standing.

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And certainly the... And assuming we have review authority, you would say what the standard review is substantial evidence.

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Absolutely.

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It's arbitrary and capricious and substantial evidence, just like any other review of any type of administrative agency action.

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And the court is well equipped to do that.

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The court all the time reviews the record compiled by an administrative agency to determine whether the facts that they have found.

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We do that in adjudicatory proceedings where there are parties that put together a record.

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They're contending parties.

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They're adversaries.

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And it makes some sense to review in that setting under substantial evidence.

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All you have here is an agency

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of something that happened.

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It's not an adjudicatory procedure.

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It isn't limited to adjudicatory procedure.

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Anything that is a final order goes well beyond adjudication.

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Anything that is a final disposition, whether positive or negative, affirmative or declaratory or adjunctive, that ends a matter is an order.

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Do you have any authority supporting this?

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That's 5 USC, 551 C.

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One would expect to find it pretty easily.

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They can't find it.

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In terms of, there are any number of intermediate decisions in the course of an NTSB investigation that court had deemed to be final and easily susceptible to judicial review.

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the 10th Circuit in Burnett, the 9th Circuit in Graham, the D.C.

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Circuit in Creed, said in all of those instances, for example, the decision to publish the truckers' medical records on their website, that was a final order from the district courts, respectively, and carried sufficient consequences to merit review.

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I would say that the 10th Circuit in Burnett and the 9th Circuit in Graham each said that intermediate decisions, in both those decisions, those were the decisions

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not to permit a family of a victim to participate in the teardown of an engine after an accident, those were decisions that were final words and susceptible to judicial review.

[00:12:15] Speaker 01:
What about the, I'm surprised you didn't mention the Tozzi case, where there's a report finding that something may cause cancer.

[00:12:23] Speaker 06:
Absolutely, that's another instance, that's a little... Just a report.

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That's the score from a couple years ago.

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That's a little bit, that's not in the NTSB context.

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I was trying to answer Judge Edwards' question in the NTSB context.

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Excuse me.

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But certainly TOZI was a situation where the, maybe it was HHS again, deemed that dioxin was a carcinogen.

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And they published that.

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And a manufacturer comes in and says, hey, that's going to, A, harm the reputation of dioxin, which I make, and I'm going to lose money.

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And the court found that that was perfectly adequate to constitute final agency actually.

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It was just a report.

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It didn't have any substantive consequences.

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Along those lines, the FAA issues hazard, no hazard letters all the time, which are deemed to be technical in nature, advisory in nature, have no legal enforceable effect.

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But what they do is they cause or at least encourage other people to do other things.

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Which had the NTSB done its investigation properly, they would have been obligated to come up with safety recommendations, which the FAA then is obligated to consider and implement to the extent possible.

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As in Bennett versus Speer,

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That's the exact same type of scenario that is needed to be finalized exactly in the spring courses at Bennett.

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It was a fish tape report with respect to the fish and wildlife

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service issued.

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On its own it doesn't do anything, but then the Bureau of Land Management oftentimes looks to those types of things in terms of determining what to do about a dam, which then leads to a petitioner saying, hey, I get hurt by the amount of water I can use.

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in that category was excluded.

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Of course that kind of person can raise a challenge because the agency has a regulation and the regulation was violated.

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There's nothing here that says, in fact the regulation here says the opposite, that we're not meaning to produce anything.

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All the examples you gave, aren't they reports that were being made for an agency action that was going to determine rights and obligations.

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Whereas here, the purpose of this and how it's used, it's just a report.

[00:14:52] Speaker 06:
It isn't.

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It's not going to be used.

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In the ordinary course, what is supposed to happen.

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It's not going to be used by the agency to adjudicate rights or obligations.

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Is that correct?

[00:15:01] Speaker 06:
No.

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What is, in the ordinary course, the whole purpose of the probable cause report is to then come up with safety recommendations that you give to the FAA, and the FAA goes and does it.

[00:15:13] Speaker 06:
It's precisely the same thing.

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But it can't be that because they didn't do their job, they're therefore insulated from judicial review.

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And so what we have here is a situation where the folks that continue to fly into Bloomington, nothing has changed.

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So to the extent there were problems endemic to Bloomington, by the way of which my client is one, if there were problems endemic to Bloomington,

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or the air traffic controllers in general in that area, they're still there.

[00:15:46] Speaker 03:
Is there a single, I want to make sure I understand your answer, because I won't read it again if you have an answer, is there a single Court of Appeals or Supreme Court case that has said the end result of the investigation, that report, is subject to judicial review?

[00:16:01] Speaker 03:
Barrett does not say that.

[00:16:02] Speaker 06:
The only decision that has said that it isn't subjudicial review is Gibson, and Gibson's wrong for any number of the reasons we said in the brief.

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Correct me if I'm wrong.

[00:16:14] Speaker 04:
It seemed to me all the cases that you were citing were cases where the report was taken and then used by an agency

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to adjudicate a decision.

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Whereas in this case, we have a report was made and then the regulations say it can't be used for anything other than correcting problems at the airport.

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No, it's actually the reverse.

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The only thing the regulation says, and I'm sure agencies would love to draft their own regulations that insulate themselves from judicial review.

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That's not what operates.

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It's 1153.

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There are agencies can promulgate certain kinds of regulations that insulate themselves from review.

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For example, procedural requirements beyond what the statute says or the APA requires.

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The agency can go there or not, and if they don't go as far as you would prefer, we don't have any review on Vermont Yankee.

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Agencies do all kinds of regulations that effectively limit

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but you begin by looking at the statute, which is 1153A, which says that any person that discloses substantial interest in the final order has the right to a petition for review.

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And we are clearly a person that has... Well, you're assuming something about final order, so that's...

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I believe we have demonstrated that there's both the consummation of agency decision-making and the arrests and liabilities and it has altered the legal... You didn't ask for any rebuttal time, but I'm assuming you'd like some.

[00:17:46] Speaker 04:
I would love some rebuttal time.

[00:17:47] Speaker 04:
We'll give you about two minutes.

[00:17:49] Speaker 04:
Thank you so much.

[00:17:50] Speaker 04:
Thank you.

[00:17:57] Speaker 05:
May it please the court?

[00:17:58] Speaker 05:
My name is Howard Scherer.

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I represent the FAA and the NTSB in this matter.

[00:18:02] Speaker 05:
To start with your first question, Judge Gruff, for the final order, we don't even think this is an order because it doesn't fix any legal consequences, change any relationship or impose an obligation.

[00:18:14] Speaker 05:
And I think that's where the Gibson court went in its decision in the Ninth Circuit.

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And furthermore, Gibson was a case exactly like this in its posture, where there was a petition for reconsideration

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after the original incident, and the court found in that case that both the denial of the reconsideration, or I should say neither the denial of the reconsideration nor the original probable cause determination was an order, and certainly not a final order, and it's not subject to review and dismissed for lack of jurisdiction.

[00:18:50] Speaker 01:
Can you focus on just the petition for reconsideration issue as to why

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that is not a reviewable final agency order, but just the fact that you denied reconsideration.

[00:19:03] Speaker 01:
I know they want to get behind the order, but it seems to me that commonly when agencies deny reconsideration, that is an order, a final order of the agency.

[00:19:13] Speaker 01:
It has a legal consequence of refusing to reconsider or reopen something.

[00:19:18] Speaker 05:
So it doesn't have a real legal consequence anymore than the original probable cause determination because all it's doing is saying effectively in this case we are not going to reconsider our original probable cause determination and I don't see and Gibson said the same thing you can't make yourself better by simply

[00:19:36] Speaker 05:
filing a petition for reconsideration, then getting a decision, and then somehow getting something more reviewable than the original probable cause determination.

[00:19:43] Speaker 01:
Well, you may not be able to get... I mean, there's a separate question whether that lets you leapfrog back to the original order, but imagine if the agency just had an entirely arbitrary rule for whether it would grant or deny petitions for reconsideration.

[00:19:55] Speaker 01:
Will

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throw it up in the air.

[00:19:57] Speaker 01:
If it lands on this side of the line, we grant.

[00:19:59] Speaker 01:
This side, we deny.

[00:20:01] Speaker 01:
Would that not be a final order that would be reviewable?

[00:20:04] Speaker 05:
So Gibson didn't... I'm going to answer it this way.

[00:20:08] Speaker 05:
In Gibson, the concluding paragraph was that it's not reviewable, period, because it's not an order.

[00:20:14] Speaker 05:
But if you were to ask me to choose Plan B, fallback position, I would say,

[00:20:19] Speaker 01:
Well, just explain to me, other than saying that's what the Ninth Circuit said as a matter of logic, why under the Administrative Procedure Act generally, or this statute in particular, the order denying reconsideration is not itself a final order, putting aside how far back it lets them look.

[00:20:36] Speaker 05:
Because, in fact, it doesn't fix any legal obligations.

[00:20:39] Speaker 01:
It's denied them reconsideration.

[00:20:41] Speaker 01:
The regulations say you can file a petition and we've said you couldn't do it.

[00:20:44] Speaker 01:
Just like if DHS denies an alien's application for reconsideration of an immigration decision.

[00:20:54] Speaker 05:
But then there's the secondary effect of then that person has lost a right or it has fixed a right.

[00:20:59] Speaker 01:
Well, they lost it in the prior order.

[00:21:00] Speaker 01:
They just didn't reopen or reconsider what I asked them to.

[00:21:03] Speaker 05:
So the original decision regarding whatever fixing of legal rights is then still in effect in the hypothetical, which doesn't exist here because the original

[00:21:14] Speaker 05:
probable cause determination fixed, no legal rights, or ended with any legal consequences on Mr. Joshi.

[00:21:22] Speaker 01:
If they just thought you were arbitrary in how you denied petitions for reconsideration, what is the standard of review?

[00:21:28] Speaker 01:
I assume it's incredibly deferential.

[00:21:31] Speaker 01:
Or would you say it's entirely committed to agency discretion, whether you want to reconsider one of these things?

[00:21:35] Speaker 05:
Yes, I think it is committed to agency discretion.

[00:21:39] Speaker 05:
I know this court has had a line of our cases in which you talk about failure to follow procedures.

[00:21:44] Speaker 05:
But I think, as Judge Edgeworth says in Chiron, this is a unique situation.

[00:21:49] Speaker 05:
This agency performs a unique set of circumstances.

[00:21:53] Speaker 05:
It's independent.

[00:21:54] Speaker 05:
And its duty is to investigate plane, in this case, airplane accidents, determine the probable cause, but not fix.

[00:22:02] Speaker 05:
any legal rights or responsibilities or obligations.

[00:22:05] Speaker 05:
And the idea is, if recommendations are appropriate, they weren't in this case, to make recommendations both to the industry

[00:22:15] Speaker 05:
person who owned the airplane, the person who manufactures the engine, or to the FAA.

[00:22:21] Speaker 05:
Recommendations, and we do in appropriate cases, and about 82% of the time right now those recommendations are complied with.

[00:22:29] Speaker 03:
Don't your regulations allow a petition for reconsideration?

[00:22:32] Speaker 05:
They do.

[00:22:33] Speaker 03:
I mean that's the little bit of weird piece in this case.

[00:22:37] Speaker 03:
It's a procedural right that the agency is

[00:22:40] Speaker 03:
given, the statute doesn't necessarily require, as far as I can tell.

[00:22:45] Speaker 03:
So the question is, if you've given a procedural right, do they not have her, and you say, no, we're not going to allow it, that doesn't mean you're wrong.

[00:22:55] Speaker 03:
The question is, do they have a right to challenge that?

[00:22:57] Speaker 03:
Because at least with respect to the right that you've given, which you didn't have to give, the right to petition for reconsideration, you deny it.

[00:23:05] Speaker 03:
That might be reviewable.

[00:23:07] Speaker 03:
It certainly would be a very deferential standard of review, and it does not mean that the final

[00:23:13] Speaker 03:
product is otherwise reviewable.

[00:23:16] Speaker 03:
It might only mean that if someone wants to challenge your denial of petition for reconsideration, they might be able to.

[00:23:24] Speaker 03:
It can't go any further.

[00:23:25] Speaker 05:
So let me answer again, starting with Gibson.

[00:23:27] Speaker 05:
Gibson, I think, addresses that very clearly at the end and says, no, it would not be.

[00:23:31] Speaker 05:
Yeah, but the question is why.

[00:23:33] Speaker 05:
And then, well, I think because of what it said about the legal consequences part of the equation, that is to say, no matter how you slice it, there is no determination other than a probable cause of determination that... No, no, the right that's being asserted in the petition for reconsideration is I want to ask you to look at this again.

[00:23:52] Speaker 03:
And the agency has said, you have that right.

[00:23:54] Speaker 03:
You can ask us to look at it again.

[00:23:55] Speaker 03:
You have something concrete.

[00:23:57] Speaker 03:
We're giving it to you.

[00:23:58] Speaker 03:
And you deny it, you say no.

[00:24:01] Speaker 03:
That doesn't mean that you lose.

[00:24:04] Speaker 03:
But can someone not come in and say, they said I have a right to petition for reconsideration, so they have to consider it reasonably.

[00:24:11] Speaker 03:
They didn't.

[00:24:12] Speaker 03:
And then we go to the standard of review.

[00:24:14] Speaker 03:
You would argue it's very deferential.

[00:24:16] Speaker 03:
We deny it.

[00:24:17] Speaker 03:
And your argument would then be, as I understand you, that's it.

[00:24:21] Speaker 03:
It's over.

[00:24:22] Speaker 03:
They can't challenge the original decision that they wanted reconsideration on.

[00:24:28] Speaker 03:
I think they got the review on the denial of reconsideration.

[00:24:31] Speaker 03:
That's it.

[00:24:31] Speaker 05:
If you're suggesting that that's all there is to it, that did they get their review on reconsideration?

[00:24:37] Speaker 05:
As a fallback position, I would agree with that, Your Honor.

[00:24:39] Speaker 05:
And I think Barnhart versus Levine, a case we did not cite, but in anticipation of a question like that, which involved the Office of Special Counsel, where the Office of Special Counsel has the authority and duty to investigate,

[00:24:57] Speaker 05:
matters that involve prohibited personnel practices.

[00:25:00] Speaker 05:
This court said at the very least there's an obligation on the Office of Special Counsel to do what the statute required it to do.

[00:25:09] Speaker 05:
But beyond that, if it doesn't do that, mandamus might serve to require it to do what it's required to do procedurally.

[00:25:17] Speaker 05:
But beyond that on the substance, there's no review.

[00:25:20] Speaker 03:
I understand what the Ninth Circuit I think was assuming something.

[00:25:24] Speaker 03:
And out of caution, they said, no, none of it's reviewable, because they assumed that if someone could file a petition for reconsideration, at the end of that, that would mean review of the whole matter.

[00:25:36] Speaker 03:
I don't think it necessarily follows.

[00:25:37] Speaker 03:
I think there's separate questions.

[00:25:39] Speaker 03:
For example, you write a rule that says you have a right to petition for reconsideration.

[00:25:43] Speaker 03:
Someone comes in and says, we want you to reconsideration.

[00:25:46] Speaker 03:
You say, get out of here.

[00:25:48] Speaker 03:
We've got other things to do.

[00:25:50] Speaker 03:
Well, you know, you've trapped yourself because you wrote the regulation, can't they say the least they have to do is hear what we have to say?

[00:25:56] Speaker 03:
So I would say he's still not in order and that... I understand your argument on that.

[00:26:01] Speaker 05:
It's your rule and you created a right.

[00:26:04] Speaker 05:
That's right, and I would say that it still doesn't resolve into an order, but what it does allow it, perhaps, is a mandamus action to require us to do the very thing that we provided in the regulation, namely consider the reconsideration petition.

[00:26:18] Speaker 05:
But I certainly think that your guidance in the Chiron case suggests that we're now getting embroiled in the very kinds of things that detract

[00:26:26] Speaker 05:
from the actual investigations that we have to do.

[00:26:30] Speaker 04:
Is there no redress for someone if your investigation is careless and reckless?

[00:26:38] Speaker 04:
injures someone's reputation.

[00:26:39] Speaker 04:
What redress do they have?

[00:26:41] Speaker 05:
Well, I can't accept the premise that it injures a reputation.

[00:26:45] Speaker 04:
I think the problem is... Hypothetically, if you imagine a case where it does, and what redress would it have?

[00:26:51] Speaker 05:
It's difficult for me to imagine, but assuming that, I would say there is no redress.

[00:26:55] Speaker 05:
We don't have an order.

[00:26:57] Speaker 05:
Again, I'm harping on the very definitions of order that this court has established in Mendoza versus Perez more recently, but safe extensions.

[00:27:08] Speaker 05:
and so forth where the court has said in order.

[00:27:11] Speaker 05:
changes obligations, fixes legal rights, or has a legal consequence.

[00:27:16] Speaker 01:
How did the report in TOZI actually affect legal rights?

[00:27:23] Speaker 01:
Other agencies, state or federal, might or might not pay attention to our report, but nothing in the law obligated anybody to attach legal consequences to the report.

[00:27:34] Speaker 01:
It was just, here's the federal government's views.

[00:27:37] Speaker 01:
We think it causes cancer.

[00:27:39] Speaker 05:
Right, I do think that the difference is there was the possibility, potentially, of other agencies, which is a little vaguer than in the no-hazard-hazard cases where the potential was great, that other agencies would use FAA terminations.

[00:27:56] Speaker 01:
No, I was trying to talk about toilet paper, though.

[00:27:57] Speaker 01:
The potential, but do we know that no one else in the federal government

[00:28:03] Speaker 01:
attaches any consequence, not legal consequences, but takes things that then have, in response to these reports, or do state governments attach any legal consequence, not as a liability, like they can't under the statute, but just legal consequence.

[00:28:20] Speaker 01:
We take it seriously and legal things follow from it.

[00:28:23] Speaker 05:
I'm aware of none.

[00:28:24] Speaker 05:
I asked the FAA and the NTSB those questions.

[00:28:27] Speaker 05:
They're aware of no other consequences in the vein that you're discussing, like the hazard-no-hazard determinations where some state agency might use or will use, in fact, the no-hazard determination to grant a permit or not.

[00:28:42] Speaker 05:
None of that, as far as I know.

[00:28:43] Speaker 01:
I guess I'm just trying to figure out, like Zantosi just said, look, you know,

[00:28:46] Speaker 01:
It's bad for business to have the U.S.

[00:28:50] Speaker 01:
government officially report, put on its website, that something we make has an ingredient that in their determination causes cancer.

[00:28:58] Speaker 01:
It's just bad for business.

[00:28:59] Speaker 01:
It hurts our pocketbook.

[00:29:01] Speaker 01:
And here they seem to be saying the U.S.

[00:29:05] Speaker 01:
government with all of its authority and all of the force of its voice has gone on its website and said, Georgina Joshi killed five people.

[00:29:15] Speaker 01:
And that as a father, as a parent, as executive of her estate and protecting her name, that hurts.

[00:29:24] Speaker 01:
It may not be a pocketbook injury, but that hurts.

[00:29:27] Speaker 01:
Why isn't that a standing injury?

[00:29:28] Speaker 05:
So this court has said emotional injury, for one, is not sufficient for, well, we're understanding.

[00:29:34] Speaker 05:
But in terms of that very question, there isn't, well, first let me say that on the NGSB website, if you go to the factual report and the probable cause of determination,

[00:29:48] Speaker 05:
There is no name associated with either of those, as my colleague said.

[00:29:52] Speaker 05:
That's the point.

[00:29:55] Speaker 05:
I think it's very important to note that, in fact, this is just a general probable cause consideration by the NDSB.

[00:30:04] Speaker 05:
It welcomes.

[00:30:06] Speaker 05:
further evidence to reconsider whether the original probable cause of determination is or is not appropriate or still valid.

[00:30:16] Speaker 05:
And it always, according to 49 CFR 845.51, keeps these matters open.

[00:30:23] Speaker 05:
So now I'm finally to the final order part of the order.

[00:30:27] Speaker 05:
to the extent that in this unique situation where probable cause determinations are not closed, because the agency does want to perfect the information, after all air safety is at stake, it doesn't close the investigation.

[00:30:43] Speaker 05:
It continues to be open, and I think that's

[00:30:45] Speaker 01:
The key reason, though not stated, why... Was there cases where, you know, FBI is investigating someone for anthrax, something like that, and they say, we think we have a suspect.

[00:30:59] Speaker 01:
Has anyone seen Mr. X?

[00:31:02] Speaker 01:
And it's an ongoing investigation.

[00:31:05] Speaker 01:
They're not done.

[00:31:05] Speaker 01:
There's nothing remotely final about it.

[00:31:08] Speaker 01:
And then it turns out, of course, it wasn't Mr. X. And meanwhile, his reputation has been shattered because the federal government came out in a tentative statement and said, we think there's probable cause to believe that X caused a bad thing to happen.

[00:31:22] Speaker 05:
I'm not sure exactly whether that would be APA review or NTSB, some sort of special statute review.

[00:31:27] Speaker 01:
It's not an injury.

[00:31:28] Speaker 01:
I guess I'm going to go back to the start just with the standing.

[00:31:31] Speaker 05:
As Judge Edwards said in the Chiron case, there's no injury traceable to probable cause determinations, because all they're done for is to enable air safety to be improved.

[00:31:42] Speaker 05:
They're not done to settle any legal liabilities or any relationships amongst parties.

[00:31:47] Speaker 05:
whether out there and unknown or those that we know of who participated in the investigation.

[00:31:53] Speaker 01:
I think... If Georgina and Joshi were still alive, and let's imagine this is completely hypothetical, but you had a completely corrupted investigation driven by some aircraft company or some parts company, and she had all this evidence that it was completely corrupted.

[00:32:10] Speaker 01:
There was no basis.

[00:32:11] Speaker 01:
It wasn't even colorable or plausible to blame her for it.

[00:32:14] Speaker 01:
Would she have any injury from the fact that this report was still out there?

[00:32:19] Speaker 01:
Would she have any injury and would she have any remedy?

[00:32:22] Speaker 05:
So my answer is no.

[00:32:23] Speaker 05:
And her ability to present the evidence to the NTSB puts it out on the NTSB website.

[00:32:29] Speaker 05:
In fact, she can provide her, as was the case here, their own

[00:32:33] Speaker 05:
of study and report saying what they think is the appropriate.

[00:32:36] Speaker 01:
You put that on the website next to your own, any private report that they come up with?

[00:32:41] Speaker 05:
No, but it's available on the public docket.

[00:32:43] Speaker 05:
No, so it's not next to our report, to be clear.

[00:32:46] Speaker 03:
But it is on the public docket.

[00:32:47] Speaker 03:
You're conflating the TOZI-type reputational injury, which was well-planned.

[00:32:54] Speaker 03:
But, sure, the reputational injury has been well-planned here, but in any event, with the requirement, the finale.

[00:33:01] Speaker 03:
And you can have standing and still not be able to pursue a claim.

[00:33:05] Speaker 03:
And that happens all the time.

[00:33:06] Speaker 03:
Article III standing, in some senses, is hard.

[00:33:09] Speaker 03:
In some senses, it's easy.

[00:33:10] Speaker 03:
I mean, the Supreme Court has said there are cases where you can have Article III standing, or you may not be in the zone of interest.

[00:33:16] Speaker 03:
You may not have finality.

[00:33:17] Speaker 03:
Whatever your argument is, whether or not there is Article III standing theoretically here, that they've made some showing on reputation, they have no final order to go in.

[00:33:28] Speaker 05:
That's correct.

[00:33:29] Speaker 05:
And in addition, if I may, I see I'm over my time.

[00:33:33] Speaker 05:
If I may say as to the reputational injury, the reputational injury seems to focus on Mr. Joshi, not Georgina, in his brief.

[00:33:42] Speaker 05:
He's talking about reputational injury to himself, and I think that's because

[00:33:46] Speaker 05:
Under Indiana law, her reputation, unfortunately, has no injury to it now that she's dead.

[00:33:54] Speaker 03:
The other thing that's coming is creeping in and creeping out in this case is the suggestion that you have these findings so that the agency can make reports or not that may be appropriate with respect to safety.

[00:34:11] Speaker 03:
to come in and assist that the agency is not doing its job well enough with respect to advising other government agencies.

[00:34:20] Speaker 03:
I just don't see how he gets there.

[00:34:22] Speaker 03:
We say that you can't come in and compel the agency to do a better job of what they're doing.

[00:34:28] Speaker 05:
That's correct, Your Honor.

[00:34:29] Speaker 05:
That is our basic position.

[00:34:33] Speaker 05:
That in fact, but it's combined with the notion that there's no order here and no final orders.

[00:34:38] Speaker 03:
That's correct.

[00:34:43] Speaker 05:
Well, and that and then because we don't think this is an order.

[00:34:48] Speaker 05:
I think we started our brief purposely with that and wove in the standing argument much later.

[00:34:53] Speaker 05:
In between, of course, we said on the APA issues, those are committed to agency discretion completely by the law and the regulations so that, in fact, if you do find that there's some sort of review in this case, it wouldn't be under the APA.

[00:35:07] Speaker 05:
It would be under 49 USC 1153.

[00:35:10] Speaker 05:
Then, in fact, using APA type standards to review, there would be no

[00:35:18] Speaker 05:
way in which manageable standards for this court to judge what the NTSB has done.

[00:35:24] Speaker 05:
If there are no further questions, I'd ask the court to dismiss the petition for review on the basis that there's no jurisdiction.

[00:35:35] Speaker 04:
Thank you.

[00:35:38] Speaker 04:
Mr. Casey.

[00:35:41] Speaker 06:
Thank you, Your Honor.

[00:35:42] Speaker 06:
I'm struck by the fact that the NTSB is essentially arguing that its most important task has no consequence, which is essentially what they have to be doing in order to say that they're... I don't think that's what they said.

[00:35:55] Speaker 04:
They said no legal consequences, and that's a term barred.

[00:35:59] Speaker 04:
Jury speeches don't work.

[00:36:01] Speaker 06:
I understand, Your Honor.

[00:36:02] Speaker 06:
What I'm trying to say is that they do have substantial consequences.

[00:36:06] Speaker 06:
But to get to his discussion of Chiron, this is in no way Chiron.

[00:36:13] Speaker 06:
In Chiron, we're essentially the anti-Chiron, Judge Edwards.

[00:36:17] Speaker 06:
In Tyrone, the people that were seeking review were parties to the investigation and therefore had waived any rights to information.

[00:36:28] Speaker 06:
We are expressly not parties to the investigation.

[00:36:32] Speaker 06:
In addition, they professed that their injury that they would suffer was that it would damage them in ongoing or future civil litigation.

[00:36:42] Speaker 06:
That's in no way what we're talking about here.

[00:36:46] Speaker 06:
The issues that Chiron turned on have nothing to do with this case here.

[00:36:52] Speaker 06:
Going back to Gibson, Gibson really is an opinion that there's a reason why it hasn't been cited in 17 years.

[00:37:01] Speaker 06:
It ignores the presumption of reviewability of agency action.

[00:37:05] Speaker 06:
It says that the, it focuses on the question with regard to determining consequences purely from the lens of lack of admissibility in a civil jury trial.

[00:37:16] Speaker 06:
And that is not at all the only, that's not where we are in any way.

[00:37:22] Speaker 06:
This is not going to be used in a civil jury trial.

[00:37:24] Speaker 06:
And as we said, we have, we have, there are obligations that would have accrued had they done their job and come up with safety recommendations.

[00:37:34] Speaker 06:
And in addition, there are legal rights, for example, not to be accused of being the killer of five people.

[00:37:45] Speaker 06:
And the information that a adequate investigation would have resulted in, which would be safety recommendations for the airplane that he spoke applies into.

[00:37:55] Speaker 04:
Great.

[00:37:56] Speaker 04:
Thank you very much.

[00:37:57] Speaker 04:
We have your argument.

[00:37:57] Speaker 04:
The case is submitted.