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CHIRON CORP. v. UNITED STATES NTSB

December 2, 1998

CHIRON CORPORATION and PERSEPTIVE BIOSYSTEMS, INC., Plaintiffs,
v.
UNITED STATES NATIONAL TRANSPORTATION SAFETY BOARD and JAMES E. HALL, and DANIEL D. CAMPBELL, and THOMAS CONROY, Defendants.



The opinion of the court was delivered by: URBINA

MEMORANDUM OPINION

 TRANSFERRING THE MATTER TO THE DISTRICT OF COLUMBIA CIRCUIT

 I. INTRODUCTION1

 Plaintiffs Chiron Corporation ("Chiron) and PerSeptive Biosystems, Inc. ("PerSeptive") brought this action against Defendants United States National Transportation Safety Board ("NTSB" or the "Board"), and in their official capacity the Board's Chairman, its General Counsel, and an employee appointed Investigator in Charge. Chiron and PerSeptive seek judicial review of NTSB's denial of their request for access to information relating to the Board's investigation of a fire that destroyed an aircraft operated by Federal Express Corporation ("FedEx") as Flight 1406. The defendants moved to dismiss the suit on the ground that this court lacks jurisdiction over the matter by virtue of a provision of the Independent Safety Board Act, which grants exclusive jurisdiction of NTSB matters to the United States Courts of Appeals.

 During the pendency of the suit, Chiron and PerSeptive filed a motion for a temporary restraining order and a preliminary injunction. In this motion Chiron and PerSeptive requested that the court order the Board to not dispossess itself of any communication, documentation, information, or tangible thing in its custody concerning its investigation of FedEx Flight 1406 and its cargo. Chiron and PerSeptive additionally requested that this court order the Board to describe and identify the location of any of these items currently in the NTSB's possession or returned to FedEx or any other non-party.

 Upon review of the pleadings and relevant case law, the court concludes the Courts of Appeals have exclusive jurisdiction to review NTSB matters relating to its investigation of Flight 1406. Accordingly, this court cannot hear the merits of the suit. In the interest of justice the court transfers the matter to the District of Columbia Circuit, pursuant to 28 U.S.C. § 1631 and 49 U.S.C. § 1153. Because this court lacks jurisdiction, this court will not decide the motion for a temporary restraining order and a preliminary injunction.

 II. BACKGROUND

 On September 5, 1996, while in flight, a fire occurred onboard FedEx Flight 1406, a DC-10 aircraft. (Pls.' Am. Compl. P 14.) The aircraft landed at Stewart International Airport in Newburgh, New York, and despite fire suppression efforts of emergency response crews, the fire consumed the aircraft. (Id.) Pursuant to its statutory authority, NTSB began an investigation of the destruction of the DC-10 aircraft. (Id. ; Defs.' Mem. in Supp. of Mot. to Dismiss at 1.)

 In the course of its investigation, NTSB appointed FedEx, Chiron, and PerSeptive as "parties" to the Flight 1406 investigation. (Pls.' Am. Compl. P 16.) In March 1997 the Board's Chairman testified before Congress that a cargo container holding a DNA synthesizer constituted the probable source of the smoke and fire that destroyed the plane. (Pls.' Am. Compl. P 17.) Chiron owned the DNA synthesizer, and PerSeptive manufactured it. (Pls.' Am. Compl. P 15.)

 During the investigation NTSB collected various items of wreckage and information, including twenty-three cargo containers from the main cabin and thirteen containers from the lower cabin, (Pls.' Am. Compl. P 18), and the cargo shipping manifest, (id. at P 21). On at least ten separate occasions, between October 1996 and April 1998, Chiron or PerSeptive made requests to the Board for access to the cargo shipping manifest and other unspecified cargo information. (Pls.' Am. Compl. P 21.) The Board never complied with the request. (Id.)

 On October 7, 1997, and January 28, 1998, Chiron and PerSeptive, respectively, filed petitions with NTSB requesting the release to the parties of the cargo manifest, insurance claims and any other information revealing the contents of each cargo container on Flight 1406. (Pls.' Am. Compl. PP 22, 24.) NTSB denied the petitions on the bases that FedEx had termed such information "sensitive commercial information" subject to the Trade Secrets Act and because FedEx had objected to its release. (Pls.' Am. Compl. PP 23, 26.)

 Chiron and PerSeptive filed a three-count complaint with this court on May 7, 1998, amended on May 11, 1998, seeking review of NTSB's denial of their request for access to information. Chiron and PerSeptive request that the court (1) set aside NTSB's decisions to withhold information from them; (2) enjoin NTSB from withholding the cargo information and order NTSB to reveal the information to the plaintiffs; (3) compel NTSB to disseminate all information concerning the investigation to all parties to the investigation; (4) exercise mandamus authority to compel NTSB to require all persons with information concerning the investigation to submit such information; (5) reimburse Chiron and PerSeptive for all costs, expenses, and attorneys fees; (6) issue a special finding that the circumstances raise questions of whether agency personnel acted in an arbitrary and capricious manner, so that special counsel will initiate a proceeding to determine whether disciplinary action is warranted; and (7) grant any other appropriate relief. (Pls.' Am. Compl. PP 48-54.)

 Chiron and PerSeptive assert that this court has jurisdiction pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"); the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ; the federal question statute, 28 U.S.C. § 1331; the mandamus statute, 28 U.S.C. § 1361; and 49 U.S.C. ...


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