In discussing the role of the U.S. Supreme Court, Justice Robert Jackson famously remarked in his concurring opinion in a 1953 case that “[w]e are not final because we are infallible, but we are infallible only because we are final.”  In contrast, the National Transportation Safety Board (NTSB), although it is widely regarded as the “gold standard” of transportation accident investigations worldwide, to its great credit, has regulatory procedures in place that indicate its transportation accident reports are neither “final” or “infallible.”  In fact, we just got an example of those procedures in action, as the NTSB just modified both its findings and probable cause determinations in an investigation arising out of the November 30, 2018 crash of a Cessna Citation near Memphis, Indiana.

The NTSB’s regulations on its petitions for reconsideration process appear at 49 Code of Federal Regulations §§ 845.32 and 845.33.  In accordance with §845.32(a), “the agency will only consider petitions for reconsideration or modification of findings and determination of probable cause” where such petitions “are based on the discovery of new evidence or on a showing that the Board’s findings are erroneous.”  Section 845.33 states: “[t]he [NTSB] never officially closes an investigation, but provides for the submission of new and pertinent evidence by any interested person.”

Significantly, NTSB’s responses to petitions for reconsideration are not subject to judicial review. Appellate courts have determined that they do not have jurisdiction to review NTSB denials of petitions for reconsideration because they are not considered to be final agency orders. See Joshi v. National Transportation Safety Board, 791 F.3d 8 (D.C. Cir. 2015, cert. denied, 577 U.S. 1120 (2016); Helicopters, Inc. v. National Transportation Safety Board, 803 F.3d 844 (7th Cir. 2015). In Joshi, the court note that the petition for reconsideration process functions to ensure the NTSB ‘‘develops safety recommendations based on the most complete record possible.’’ 791 F.3d at 12. As a result, the court characterized petitions for reconsideration as ‘‘simply another stage of the accident investigation procedure.” Id.

Compelling evidence that the NTSB “never closes an investigation” is reflected in two petitions for reconsideration addressed by the agency long after the issuance of an agency accident report.

The NTSB received a petition for reconsideration in 2015 for the investigation of the February 4, 1959, plane crash that killed Buddy Holly. The Civil Aeronautics Board (NTSB’s predecessor agency) issued its Aircraft Accident Report on September 23, 1959. Also, an interested party filed a petition for reconsideration and modification of the NTSB’s findings and determination of probable cause for the crash of TWA Flight 800. The crash occurred in July 1996 and the petition was filed in June 2013.

Typically, in instances where the NTSB grants a petition for reconsideration (either in whole or in part), it either modifies the factual findings or probable cause determination in the final accident report. More rarely, the agency will modify both the factual findings and probable cause determination. A recent case in point is a petition for reconsideration filed by Tamarack Aerospace Group to modify the NTSB’s findings and probable cause determination in an aviation accident final report published in November 2021 regarding the November 30, 2018, accident in Memphis, Indiana noted above. (Accident Number CEN19FA036). (Note: Fox Rothschild LLP assisted the petitioner in submitting its petition for reconsideration). In its response to petitioner Tamarack Aerospace Group, the NTSB concluded that “the available evidence for this accident does not sufficiently show that the [Tamarack Aerospace Group Active Technology Load Alleviation System (ATLAS) — a modification to the accident aircraft –] was the cause of the in-flight upset from which the pilot was unable to recover.”  As a result, the NTSB issued a modified Aviation Investigation Final Report, dated February 23, 2024, that revised a number of its original factual findings and also provided an entirely revised probable cause determination.

The NTSB petition for reconsideration process is a valuable tool for the agency to avoid “resting on its laurels” and endeavor to reexamine previous accident investigative findings and conclusions where appropriate. We encourage parties to an NTSB accident investigation (or other person with a direct interest in an investigation) in which the agency has issued a “final” report, to closely consider the availability of the NTSB reconsideration process in appropriate circumstances.

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