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Donald Creed v. National Transportation Safety

December 18, 2010


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


Donald Creed brings this action against the National Transportation Safety Board ("NTSB" or "agency"), alleging violations of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., and the Privacy Act, 5 U.S.C. § 552a et seq. Creed, a commercial truck driver, asserts that the NTSB acted unlawfully when it posted summaries of Creed's medical information, which it had obtained while investigating a serious multi-vehicle accident in which he was involved, on its public website. On September 27, 2010, this Court entered a temporary restraining order ("TRO") requiring the NTSB to remove that information from its website [#4]. On October 29, after considering Creed's motion for a preliminary injunction and the NTSB's motion to dismiss, the Court issued an order transferring this case to the United States Court of Appeals for the District of Columbia Circuit [#15]. This memorandum sets forth the rationale for the Court's order.


On June 26, 2009, Creed, while driving a tractor-trailer truck owned by his employer, was involved in a multi-vehicle highway collision in which ten people were killed. In light of the accident's magnitude, the NTSB initiated an investigation to determine its probable cause.*fn1

During the investigation by the NTSB staff, the NTSB's medical officer, Dr. Mitchell A. Garber, reviewed Creed's medical records and prepared a summary of information drawn from the records that he concluded were pertinent to the investigation. This summary was posted as an exhibit on the NTSB's public docket of the accident investigation, located on the agency's public website. A NTSB report on the accident which also included a summary of Creed's pertinent medical information, was posted as another exhibit on the public docket. As a part of its investigative process, the NTSB scheduled a public meeting of its five Board members for September 28, 2010 to review the NTSB staff's investigation into the probable cause of the accident and to consider safety recommendations that could help prevent a similar event in the future.

When Creed became aware that documents containing his medical information had been made publicly available on the NTSB's website, he requested through his attorney that those documents be removed. By a letter dated September 24, 2010, from the NTSB General Counsel to Creed's attorney, the NTSB denied the request. See Pl.'s Mot. for Prelim. Inj., Ex. C. The NTSB expressed its position that disclosure of the relevant medical information was necessary to the NTSB's performance of its statutory duties and that disclosure was not prohibited by the Privacy Act or FOIA. Id. at 2.

The same day, Creed initiated this action and filed a motion for a TRO seeking to require the NTSB to remove the documents from its website and prevent disclosure of his medical information at the September 28, 2010 public meeting of the NTSB Board members. In addition to asserting that public disclosure of his information violated FOIA and the Privacy Act, Creed explained in his motion that he and his employer were defendants in a lawsuit arising from the accident and that the plaintiffs in that lawsuit had been denied discovery regarding his medical records. The denial of discovery regarding his medical records was set forth in an order issued by the Oklahoma Supreme Court, see Pl.'s Mot. for Prelim. Inj., Ex. A, and Creed feared that the attorneys for the plaintiffs would access his medical information publicly disclosed by the NTSB.*fn2

On September 27, this Court granted Creed's motion in part, ordering the temporary removal of the information from the NTSB's public docket, and denied the motion in all other respects [#4]. The same day, Creed, through his attorney, made written objection to the public disclosure of Creed's medical information and requested that the NTSB either refrain from discussing his medical information at the Board's public meeting or close the meeting to the public when such information was discussed. The five Board members voted unanimously not to close any portion of the meeting. In a letter dated September 28, the NTSB General Counsel informed Creed's attorney of the Board's decision to deny Creed's requests. See Def.'s Mot. to Dismiss ("Def.'s Mot."), Ex. A. The letter stated the NTSB's position that, consistent with FOIA and the Government in the Sunshine Act, 5 U.S.C. § 552b et seq., the public interest in Creed's medical information relevant to the NTSB's investigation outweighed Creed's asserted privacy interest. Id. at 2, 7.

At the public Board meeting on September 28, the NTSB determined that the probable cause of the accident was Creed's fatigue, caused by acute sleep loss, circadian disruption associated with his work schedule, and mild sleep apnea. Def.'s Mot. at 3 (citing Press Release, NTSB (Sept. 28, 2010), The NTSB also made a number of safety recommendations based on its findings. Id.*fn3


Creed raises two claims based on the NTSB's disclosure of his medical information. First, he asserts a "reverse FOIA" claim under the APA, alleging that the NTSB's actions were an arbitrary and capricious exercise of agency authority and not in accordance with Exemption 6 of FOIA, 5 U.S.C. § 552(b)(6), or the NTSB's own regulations, 49 C.F.R. § 801.56 and 49 C.F.R. § 801.10(i).*fn4 Second, he claims that the disclosures violated the Privacy Act. He seeks a preliminary injunction to prevent the NTSB from (1) re-publishing the documents containing his medical information; and (2) including his medical information in its final report on the accident.

The NTSB responds that Creed cannot prevail on the merits of these claims and is not entitled to injunctive relief. It further asserts, however, that this Court is without jurisdiction to entertain Creed's claims because the Independent Safety Board Act, codified at chapter 11 of U.S. Code title 49 ("the Act" or "chapter 11"), vests exclusive jurisdiction over this case in the U.S. Court of Appeals for the District of Columbia Circuit. Thus, as a threshold matter, the Court must address whether it has jurisdiction over Creed's claims.

The Act's judicial review provision, section 1153(a), provides in relevant part: "The appropriate court of appeals of the United States or the United States Court of Appeals for the District of Columbia Circuit may review a final order of the National Transportation Safety Board under this chapter." 49 U.S.C. § 1153(a). Determining whether section 1153(a) precludes this Court from hearing Creed's case thus requires the resolution of two questions: would disposing of Creed's claims involve a "review [of] a final order of the [NTSB] under" chapter 11? And, if so, is the jurisdiction created by section 1153(a) exclusive to the courts of appeals? The Court now turns to these questions, answering both in the affirmative.

A. Adjudication of Creed's Claims Would Require Review of Final NTSB Orders Under Chapter 11 The NTSB asserts that its denials of Creed's requests to prevent the public disclosure of his medical information constitute final orders pursuant to the Act, such that any judicial review of those denials would fall squarely within the language of section 1153(a). Creed makes multiple responses. First, he asserts that section 1153(a) is intended to reach only those claims that challenge the merits of the NTSB's probable-cause determinations and safety recommendations or that attack the processes by which those decisions are reached. Pl.'s Reply at 5. By contrast, his own claims, as he sees them, do not seek to influence the NTSB's decisionmaking process or restrict the universe of information that it may consider during that process. Thus, Creed argues, his claims do not seek review of NTSB action ...

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