In a recent case, In re Show Cause Order Dated December 15, 2017, a federal court in Maryland has quashed a state court’s order requiring the NTSB to designate a person to appear on its behalf and explain why the NTSB had not yet finished an investigation into a gas explosion. Although this case doesn’t involve an aircraft accident, it is both analagous and instructive with respect to the autonomy the NTSB has with respect to its investigations.
The case arose out of a gas explosion which the NTSB was investigating and during which it had taken certain physical evidence into custody for analysis in making its determination regarding the probable cause of the explosion. As you might expect, around the same time multiple lawsuits were filed alleging that the explosion was caused by the negligence of the defendants and seeking to recover damages suffered as a result of the explosion.
Although the case does not provide the full background, I suspect that at least some of the physical evidence being held by the NTSB was of interest to the parties in the litigation and they were frustrated by the length of time it was taking the NTSB to complete its investigation and release the physical evidence. Certainly not an uncommon situation and, given the NTSB’s limited manpower and the broad scope of its investigatory charge, the lengthy time required to complete an investigation is, in many cases, understandable.
In any event, at some point in the underlying state court litigation the court entered an order requiring the NTSB to “designate an official to appear before the court in order to show cause as to why the agency should not be held in contempt for its failure to complete its investigation regarding the cause of the explosion and to provide dates by which the NTSB would complete its investigation and release the physical evidence in its custody.”
Well, when the NTSB received the order it promptly removed the case to federal court and asked the federal court judge to quash (reject or void) the order based upon the doctrine of sovereign immunity. (Sovereign immunity precludes lawsuit against the government unless the government has consented to the type of lawsuit). The Court found that the state court order “seeks to compel the NTSB, a federal agency, to send a federal official to appear in state court for the purpose of divulging information obtained in his or her official capacity”, and thus the action was barred by sovereign immunity unless the government consented. Since the NTSB did not consent, neither the state nor the federal court had jurisdiction to compel the NTSB to comply with the order.
As this case shows, motions and orders will simply incur time and expense that will not, at the end of the day, get the NTSB to move any faster than it otherwise would and, in fact, may even create delay arising from the NTSB having divert its attention from its investigation to deal with the distraction of such motions/orders. So, the moral of the story, as frustrating as it may be, is: Litigants (and others) just have to wait for the NTSB to complete an investigation and/or release physical evidence in its custody.
