United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 24, 2015 Decided June 19, 2015

No. 14-1034

YATISH JOSHI, INDIVIDUALLY, AS EXECUTOR OF THE ESTATE OF 

GEORGINA JOSHI AND MEMBER OF YATISH AIR, LLC,

PETITIONER

v.

NATIONAL TRANSPORTATION SAFETY BOARD AND FEDERAL 

AVIATION ADMINISTRATION,

RESPONDENTS

On Petition for Review of a Decision of

the National Transportation Safety Board

Brian E. Casey argued the cause and filed the briefs for 

petitioner. Timothy J. Maher entered an appearance.

Howard S. Scher, Attorney, U.S. Department of Justice, 

argued the cause for respondents. With him on the brief was 

Michael J. Singer, Attorney.

Before: GRIFFITH and MILLETT, Circuit Judges, and 

EDWARDS, Senior Circuit Judge.

GRIFFITH, Circuit Judge: After a tragic plane crash, the 

National Transportation Safety Board (NTSB) completed an 
2

investigation and issued a Factual Report and a Probable Cause 

Report identifying the pilot, Georgina Joshi, as the most likely 

cause of the accident. The pilot’s father, Yatish Joshi, filed a 

petition asking the agency to reconsider its conclusion in light 

of new evidence he gathered. The Board denied the petition. 

Joshi now seeks review of both the NTSB’s reports of its 

investigation and the response to his petition for 

reconsideration. Because neither the reports nor the response 

can be considered a final order subject to judicial review, we 

dismiss this case for lack of jurisdiction. 

I

On April 20, 2006, a private airplane crashed near the 

Monroe County Airport in Indiana, claiming the lives of the 

pilot, Georgina Joshi, and all four passengers. With help from 

two Federal Aviation Administration (FAA) investigators, the 

NTSB conducted an investigation of the accident in 

accordance with its statutory duties under the Federal Aviation 

Act to determine “the facts, circumstances, and cause or 

probable cause” of the crash. 49 U.S.C. § 1131(a)(1). The 

NTSB’s purpose in conducting such investigations is “‘to 

promote transportation safety’” and “‘formulat[e] safety 

improvement recommendations.’” Graham v. 

Teledyne-Continental Motors, 805 F.2d 1386, 1389 (9th Cir. 

1986) (quoting 49 U.S.C. § 1901(1) (1982)); see also 49 C.F.R. 

§ 831.4 (“Accident and incident investigations . . . are . . . used 

to ascertain measures that would best tend to prevent similar 

accidents or incidents in the future.”). The agency does not 

engage in traditional agency adjudications, 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.” Chiron Corp. v. NTSB, 198 

F.3d 935, 937 (D.C. Cir. 1999). At the conclusion of an

investigation, the NTSB compiles and publishes a final 
3

accident report that contains factual findings, a probable cause 

finding, and recommendations for any safety improvements 

thought necessary. See 49 U.S.C. § 1131(e); see also Chiron, 

198 F.3d at 939. Such reports are used within government 

agencies to determine whether to promulgate additional safety 

regulations. Upon the completion of the investigation of 

Joshi’s crash, the NTSB released a Factual Report and a 

Probable Cause Report (the Reports). The Factual Report

explained the various data the agency gathered, including

information on the aircraft, the weather conditions, the airport 

where Joshi attempted to land, and the state of the wreckage. 

The Probable Cause Report gave a brief summary of the 

accident and concluded that it was likely the product of the 

pilot’s actions during the approach to landing. 

Petitioner Yatish Joshi, the father of Georgina Joshi,

believed that the investigation was not thorough and the 

Reports were faulty. He took it upon himself to hire an 

engineering firm to reconstruct the accident by analyzing radar 

data, air traffic control transmissions, witness statements, and 

other relevant materials available to the NTSB during the 

investigation. After gathering evidence, the engineering firm 

concluded that another plane most likely interfered with 

Georgina Joshi’s flight path and caused her to take evasive 

action, which caused the crash. Yatish Joshi petitioned the 

NTSB to reconsider the Probable Cause Report1 and submitted 

as new evidence the results of the investigation by the 

engineering firm, along with a Department of Justice (DOJ) 

 1 Although Joshi only petitioned for reconsideration of the 

Probable Cause Report, he challenges both Reports on appeal. 

Because we conclude that neither of the Reports is an order of the 

NTSB, we need not concern ourselves with whether Joshi’s failure to 

challenge the Factual Report before the NTSB raises questions of 

exhaustion. 
4

letter addressing the settlement of civil litigation related to the 

accident.

2 Joshi argued in his petition that the engineering 

report showed that a second aircraft was operating in the area 

and contributed to the accident. He also claimed that the civil 

litigation had revealed that certain FAA failures played a role 

in the crash, that the FAA had admitted as much in the DOJ 

letter, and that this merited inclusion in the Probable Cause 

Report. The NTSB reviewed Joshi’s materials, but found that 

the engineering firm’s methodologies were flawed, that its 

conclusions were not supported by the evidence, and that new 

witness statements the firm had obtained and relied upon were 

consistent with the NTSB’s original report. The NTSB also 

addressed the alleged FAA failures and concluded that proper 

procedures were used and that the DOJ letter Joshi submitted 

did not show otherwise. Because in its judgment the probable 

fault remained with the pilot, the NTSB denied the petition for 

reconsideration. Joshi now petitions this court for review of the 

Reports and the denial of his petition for reconsideration. 

 2 In 2008, Joshi filed a claim against the United States under the

Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq., asserting 

that the FAA’s actions contributed to the crash because it failed to 

properly staff its facilities, adequately train the controller on duty the 

night of the accident, and provide adequate weather information to 

the controllers. That case was settled and, as a condition of the 

settlement, the Department of Justice provided Joshi with a letter.

After reciting Joshi’s arguments as to how the FAA’s own actions 

had contributed to the accident, the letter concluded that “[a]lthough 

the United States would present a full defense to these allegations if 

this case were tried, we have agreed to settle this case based upon our 

assessment that the court could find merit in at least some of these 

allegations and determine that air traffic control negligence was a 

cause of this unfortunate crash.” J.A. 186. 
5

II

The Federal Aviation Act limits our jurisdiction to the 

review of “final order[s] of the National Transportation Safety 

Board.” 49 U.S.C. § 1153(a). We have explained that to 

constitute a final, reviewable order, “an agency disposition 

must mark the consummation of the agency’s decisionmaking 

process, and it must determine rights or obligations or give rise 

to legal consequences.” Safe Extensions, Inc. v. FAA, 509 F.3d 

593, 598 (D.C. Cir. 2007) (internal quotation marks omitted). 

In considering whether NTSB reports satisfy these 

requirements, we note that we are not the first court to answer 

this question. In Gibson v. NTSB, 118 F.3d 1312 (9th Cir. 

1997), the Ninth Circuit was presented with similar facts when 

a pilot petitioned for review of the NTSB’s determination that 

he and his flight crew were responsible for a plane accident.

The court concluded that there was no final agency action for it 

to review because the NTSB reports and denial of the motion 

for reconsideration lacked the necessary “determinate 

consequences.” Id. at 1315. 

We agree. According to NTSB regulations, accident 

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. They are considered “fact-finding proceedings 

with no formal issues and no adverse parties. They are not 

subject to the provisions of the Administrative Procedure Act 

and are not conducted for the purpose of determining the rights 

or liabilities of any person.” Id. (citation omitted). Indeed, 

under the Federal Aviation Act and related NTSB regulations, 

no part of an NTSB accident report that relates to an accident 

investigation may be admitted as evidence or for any other use 

in civil litigation. 49 U.S.C. § 1154(b); 49 C.F.R. § 835.3. 

Thus, no legal consequences of any kind result from the 

NTSB’s factual report or probable cause determinations. 
6

Joshi alleges that various consequences have resulted from 

the Reports, including reputational harm, financial harm, 

emotional harm, and informational harm. But even if Joshi is 

right and has suffered such harms, these are practical 

consequences, not legal harms that can transform the Reports 

into a final agency order and trigger our jurisdiction. We 

explained the distinction between practical and legal 

consequences in Reliable Automatic Sprinkler Co., Inc. v.

CPSC, 324 F.3d 726 (D.C. Cir. 2003). There, the agency 

conducted an investigation into the safety of the appellant’s 

sprinkler heads, issued a statement of the agency’s intention to 

make a preliminary determination that the sprinkler heads 

presented a substantial product hazard, and requested that the 

appellant take voluntary corrective action. Id. at 731. The 

appellant sued the agency, arguing that the agency lacked 

jurisdiction to regulate the sprinkler heads. We dismissed the 

case for lack of jurisdiction, holding that the agency had not 

completed a final agency action. We recognized that “there 

may be practical consequences, namely the choice [the 

appellant] faces between voluntary compliance with the 

agency’s request for corrective action and the prospect of 

having to defend itself in an administrative hearing should the 

agency actually decide to pursue enforcement.” Id. at 732. But, 

we explained, the agency’s actions “clearly ha[d] no legally 

binding effect.” Id. So too here. The consequences Joshi 

alleges are surely realities that he has faced following the 

release of the Reports, but unless the NTSB’s actions result in a

legal consequence, we lack the power to review them. 

Joshi seeks to avoid the outcome in Reliable by citing our 

review of an FAA determination in what he claims is an 

analogous situation in Aircraft Owners and Pilots Ass’n v. 

FAA, 600 F.2d 965 (D.C. Cir. 1979) (“AOPA”). But that case 

involved a very different sort of agency undertaking, with very 
7

different consequences. In AOPA, we held that the FAA’s 

determination that the construction or alteration of a structure 

near an airport is hazardous constitutes a final order subject to 

judicial review, although it is “technically advisory in nature.” 

Id. at 966 n.2. We cited to an earlier case, City of Rochester v. 

Bond, in which we explained that the FAA’s hazard/no hazard 

determinations are final and “declaratory at least in the 

commonly understood sense of formally ascribing legal 

significance to facts.” 603 F.2d 927, 933 (D.C. Cir. 1979). The 

FAA conducts such adjudications “with the intention that its 

advice will affect the proposed construction.” Id (internal 

quotation marks omitted). And indeed, the FAA’s 

determination of whether a hazard exists “directly affects the 

proceedings before other agencies.” Id. at 933 n.27. The 

Federal Communications Commission, for example, relies on 

the determinations in considering whether to grant a 

construction permit to broadcasting companies. Id. Here, by 

contrast, the NTSB ascribes no “legal significance” to the facts

it finds in determining the probable cause of the accident. The 

agency does not intend that its determination will be relied 

upon in other proceedings, and indeed the relevant statute and

regulations forbid such reliance. See 49 U.S.C. § 1154(b); 49 

C.F.R. § 835.3. The NTSB’s report is only used within the 

government in making decisions regarding the need for further 

safety regulations.

Nor may we exercise jurisdiction to review the NTSB’s 

denial of the petition for reconsideration. The reconsideration 

procedure Joshi used is not created by any statute. It is the 

result of a regulation that the NTSB promulgated to allow the 

agency to receive new evidence after it completes an accident 

investigation, ensuring that the agency develops safety 

recommendations based on the most complete record possible. 

As such, reconsideration petitions are simply another stage of 

the accident investigation procedure and are not subject to our 
8

review for the same reason we do not have jurisdiction to

review the Reports: neither the denial of the petition nor the 

Reports impose any legal consequences. The NTSB’s denial of 

Joshi’s petition for reconsideration differs from the Reports 

only in that it represents the final step of the agency’s process 

as it relates to the new evidence Joshi brought forth. Although 

the response to Joshi’s petition is the “consummation of the 

agency’s decisionmaking process” regarding Joshi’s evidence,

our precedent is not satisfied by this alone. Before we may 

consider the agency’s action a final “order,” the action must 

“determine rights or obligations or give rise to legal 

consequences.” Safe Extensions, Inc., 509 F.3d at 598. It is at 

this step of our analysis that Joshi’s argument falters. The 

NTSB’s response “no more imposed legal obligations, fixed 

rights, or altered a legal relationship” than did the initial 

probable cause determination. Aerosource, Inc. v. Slater, 142 

F.3d 572, 581 (3d Cir. 1998) (holding that the FAA’s refusal to 

reconsider a decision did not constitute a final order when the 

initial decision imposed no legal obligations); see also Gibson, 

118 F.3d at 1315 (“[T]he NTSB’s denial of a petition for 

reconsideration of a report . . . has no determinate 

consequences and is not a ‘final order of the [NTSB]’ under 49 

U.S.C. § 1153.”). We conclude that we may not review either 

the Reports or the denial of Joshi’s petition for 

reconsideration.

3 See 49 U.S.C. § 1153(a).

 3 Because we conclude that we lack jurisdiction to review the 

NTSB’s determinations, we need not and do not consider the 

agency’s alternative argument that Joshi lacks standing. See 

Baltimore Gas and Elec. Co. v. FERC, 252 F.3d 456, 461-62 (D.C. 

Cir. 2001) (declining to consider standing after finding that the court 

lacked jurisdiction on other grounds). In addition, Joshi seeks in this 

proceeding to challenge the FAA’s role in the NTSB’s investigation. 

But he asserts no independent basis for jurisdiction over that 

challenge. Our conclusion as to § 1153 thus closes off the one 

proffered avenue for jurisdiction over the FAA challenge as well. 
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III

For the foregoing reasons, we dismiss the petition for lack 

of jurisdiction.