### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 15

- 3028
H ELICOPTERS , I NC

. , Petitioner ,

v.

N ATIONAL T RANSPORTATION S AFETY B OARD , Respondent

.

____________________
On Petition for Review from a Decision of the National Transportation Safety Board.

____________________
S UBMITTED S EPTEMBER 25, 2015

— D ECIDED O CTOBER 13, 2015

____________________

Before M ANION , S YKES , and H AMILTON , Circuit Judges

. P ER C URIAM

. Helicopters, Inc., filed a petition for review asking this court to order the National Transportation Safety Board to rescind or withhold reports on a crash involving a helicopter operated by the company. We conclude that the Board ’ s reports ar e not final orders subject to our review
, and thus we dismiss the petition for lack of jurisdiction.2 No. 15

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I
In March 2014, two people were killed when a news helicopter crashed in Seattle. Helicopters, Inc., a company based in Illinois, owned and operated the h elicopter involved in thecrash. The National Transportation Safety Board began an investigation of the crash pursuant to its duty to investigate

“ and establish the facts, circumstances, and cause or probable cause of ” an aircraft accident. 49 U.S.C. § 113 1(a)(1); see also 49 C.F.R. § 831.4.
The results of the Board ’ s investigations are “ used to ascertain measures that would best tend to prevent similar accidents or incidents in the future .” 49 C.F.R. § 831.4. The Board

“ does not engage in traditional agen cy adjudication s , nor does it promulgate or enforce any air safety regulations. Rather, it simply analyzes accidents and recommends ways to prevent similar accidents in the future. ” Joshi v. Nat ’ l Transp. Safety Bd. , 791 F.3d 8, 10 (D.C. Cir. 2015) ( citation and internal quotation marks omitted). At the end of an investigation, the Board publishes a final report that includes factual findings, a determination of the probable cause of the accident , and recommendations for safety improvements. See 49 U. S.C. § 1131(e) ; Joshi , 791 F.3d at 10

. The Board ’ s reports have a limited purpose and effect:Government agencies use the reports to decide whether additional safety regulations are necessary. See Joshi , 791 F.3d at 10. The Board ’ s investigations “ are not conducted for the purpose of determining the rights or liabilities of any person. ” 49 C.F.R. § 831.4. In fact, “ [n]o part of a report of the Board, related to an accident or an investigation of an accident, may be admitted into evidence or used in a civil action for damagesNo. 15

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resulting from a matter mentioned in the report. ” 49 U.S.C. § 1154(b). On September 1, 2015, the Board released a Factual Reportlaying out the information it had gathered during its investigation of the helicopter crash in Seattle . The Board has not yet released a Probable Cause Report
, which will provide the Board ’ s analysis of the likely cause of the accident. Three days later, Helicopters sent a letter to the Board asserting that the Factual Report “ omits significant information that will make it impossible for the Board to reach an accurate determination of Probable Cause. ” The company requested that the Boardrescind the Factual Report and refrain from releasing its Probable Cause Report until “ the errors in the Factual Report are ad dressed. ” The Board responded in a letter that the Factual Report was just one part of an ongoing investigation and that, once the Board completes its investigation, “ it will issue a final accident report which will contain all relevant facts, detailed

ana lysis

... , the probable cause of the accident, and if appropriate, safety recommendations. ” The Board also told Helicopters that if after reviewing the final accident report the company believed that the findings and determination of probable cause were inc orrect, Helicopters could file a petition for reconsideration with the Board under 49 C.F.R. § 845.41. (The company has asked the Board to reconsider its Factual Report, but that request remains pending before the Board.) Helicopters then filed a petition for review with this court. The company request ed both “ interim relief ” and a “ final judgment ” requiring the Board to rescind the Factual Report and prohibiting the Board from publishing the Probable4 No. 15

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Cause Report until the Board addresses the purported ina ccuracies in the Factual Report or reconsiders the report

. In its petition for review, Helicopters invokes 49 U.S.C. § 1153 as the basis of this court ’ s jurisdiction. That statute provides that a federal court of appeals “ may review a final order ” of the Board. Id. § 1153(a) (emphasis added)

. Because of the seeming absence of a final order in this case, we directed the parties to brief whether this court has jurisdiction under the
statute to consider the company ’ s petition

.
II
Before addressing the parties ’ jurisdictional briefs, we note that only two courts of appeals

— the D.C. Circuit and the Ninth Circuit

— have considered whether the reports issued by the Board constitute reviewable final order s under § 1153(a). See Joshi v. Nat ’ l Transp. Safety Bd

. , 791 F.3d 8 (D.C. Cir. 2015) ; Gibson v. Nat ’ l Transp. Safety Bd. , 118 F.3d 1312 (9th Cir. 1997)

. The D.C. Circuit concluded that the Board ’ s reports do not constitute final orders under the statute because “ no legal consequences of any kind result ” from the reports. Joshi
, 791 F.3d at 11. The D.C. Circuit rejected the argument that reputational, financial, emotional, or informa tional harms stemming from a report issued by the Board transformed the report into a final agency order that the court ha s jurisdiction to review

. Id. at 11

– 12. The court concluded that the Board ’ s denial of a petition for reconsideration likewise is unreviewable because “ reconsideration petitions are simply another stage of the accident investigation procedure ” and the denial of a petition for reconsideration does not “ impose any legal consequences. ” Id. at 12. The D.C. Circuit ’ s analysis is consistent with the Ninth Circuit ’ s conclusion s that the Board ’ s denial ofNo. 15

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a petition to reopen an investigation “ does not constitute an

‘ order
, ’” Gibson , 118 F.3d at 1313, and that reports of the Board ’ s investigations “ do not entail the ‘ determinate consequences ’ required of a final order that can invoke ” the court ’ s jurisdiction, id. at 1315. We agree with the reasoning of the D.C. Circuit in Joshi and the Ninth Circuit in Gibson , and conclude that this case is not distinguishable from those cases

. N either the Factual Reportnor the Probable Cause Report are reviewable final orders under § 1153 (a) because the reports do not create any legal repercussions for Helicopters

. See Joshi , 791 F.3d at 11 ; Gibson
, 118 F.3d at 1315

. Helicopters maintains that this case is distinguishable from Joshi and Gibson because the company “ is not asking this Court to review the contents, conclusions or merits of the [Board ’ s] Factual Report or any future Probable Cause Report. ” Instead, Helicopters says that it “ is seeking review of the [Board ’ s] decision to publish for public consumption incomplete and inaccurate i nformation related to Petitioner ’ s involvement in the aircraft accident prior to investigating the inaccuracies. ” This argument has no merit . As the Board points out in its jurisdictional brief
, to decide whether Helicopters is entitled to the relief it seeks , this court would have to determine whether the Board “ has published an ‘ inaccurate ’ report

. ” T hus, to resolve this case, we would have to review the accuracy of the report. The Board also points out that the Factual Report is not final

— “ it is interl ocutory and subject to change ”

— and the company ’ s claim that the Board ’ s Probable Cause Report will be faulty is therefore speculative. Helicopters contends that it will suffer “ commercial and reputational harm ” as a result of the Board ’ s reports, but as6 No. 15

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t he D.C. Circuit has explained
, “ these are practical consequences, not legal harms that can transform the Reports into a final agency order [

. ] ” Joshi , 791 F.3d at 11

– 12; see also Bennett v. Spear , 520 U.S. 154, 177

– 78 (1997) (citation and internal marks omitted) (explaining that, for an agency action to be considered final, “ the action must be one by which rights orobligations have been determined, or from which legal consequences will flow ” ). The company also argues that th is court has jurisdiction under the collateral order doctrine. But that doctrine doesn ’ t apply here because, among other things, there is no “ conclusive decision ” by the Board. See Herx v. Diocese of Fort Wayne

- S. Bend, Inc., 772 F.3d 1085, 1088

– 89 (7th Ci r. 2014); Cobra Nat

. Res., LLC v. Fed. Mine Safety & Health Review Comm ’ n , 742 F.3d 82, 88 (4th Cir. 2014) (citations omitted) ( “ Clearly, if a court or agency expressly holds open the possibility of reconsideration, a collateral order appeal should not be authorized. ” ).

III
For the reasons set forth in this opinion, we dismiss the petition for lack of jurisdiction.