Case Detail

FOIA Project Annotation: A federal court in Pennsylvania has ruled that the Wolk Law Firm, representing a number of victims in suits involving fatal airplane accidents, failed to show that it was entitled to access to wreckage and cockpit videos under the Administrative Procedures Act. In response to its FOIA requests to the NTSB, the agency told Wolk that wreckage was not considered an agency record under FOIA and that cockpit videos were exempt. Wolk then pursued a claim under the APA, contending that the agency's refusal to comply with its subpoenas to grant access violated the statute. The court first found that Wolk could bring such a claim. The court pointed out that "FOIA provides for the production of 'records.' Records include videos, but cockpit videos are exempt from production. As [another judge in the district] noted in a similar action, 'wreckage itself cannot be the subject matter of a FOIA request because it is not an 'agency record' that is subject to FOIA.' Because FOIA does not provide an 'adequate remedy' to obtain cockpit videos and wreckage, an NTSB refusal to provide these materials is subject to judicial review." However, the court explained that "a court may only compel the NTSB to produce these materials if its withholding of them was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' This standard 'is narrow, and a court is not to substitute its judgement for that of the agency.'" The court then indicated that "the NTSB's refusal to produce the cockpit videos was not arbitrary, capricious or an abuse of discretion. Cockpit videos are statutorily exempt." As to access to wreckage, the court observed that while the NTSB asserted exclusive authority to inspect aircraft crash wreckage, the agency "assured Wolk that it would preserve all evidence related to the crash, consistent with the requirements of its investigation. It reminded Wolk that the results of the investigation would be released publicly as the conclusion of its investigation."
Issues: Litigation - Jurisdiction - Failure to State a Claim

FOIA Project Annotation: A federal court in Pennsylvania has ruled that the National Transportation Safety Board properly withheld records concerning several airplane crash investigations from the Wolk Law Firm under Exemption 4 (commercial and confidential), Exemption 5 (privileges), and Exemption 6 (invasion of privacy). Wolk only challenged the agency's Exemption 5 and Exemption 6 claims. The court accepted all the NTSB's claims that records were protected by the deliberative process privilege including two disputed documents that the court reviewed in camera. Although Wolk had not contested the agency's attorney-client privilege claims, the court agreed that privilege applied as well. Turning to the Exemption 6 claims, the court noted that the judge in an earlier case brought by Wolk had rejected the law firm's claim that death scene photos were not protected. Here, the court pointed out that "they are of the same nature and subject to the same overriding privacy interests in the documents Judge Robreno found were protected by Exemption 6. For the same reasons, we conclude the NTSB properly withheld the documents."
Issues: Exemption 5 - Privileges, Exemption 6 - Invasion of privacy

Date Filed	Doc #	Docket Text
2019-04-02	1	COMPLAINT against UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD (Filing fee $400.00 receipt number PPE195890.), filed by THE WOLK LAW FIRM. (Attachments: # 1 Civil Cover Sheet, # 2 Designation Form, # 3 Case Management Track Form)(kw, ) (Entered: 04/03/2019)
2019-04-02		(3) Summons Issued as to UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD, U.S. Attorney and U.S. Attorney General. Forwarded To: counsel on 4/3/19. (kw, ) (Entered: 04/03/2019)
2019-04-08	2	Praecipe for Alias Summons by THE WOLK LAW FIRM. (DEVERS, CYNTHIA) (Entered: 04/08/2019)
2019-04-08		1 Summons Issued as to UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD forwarded to Plaintiff's Counsel on 4/8/19. (rf, ) (Entered: 04/09/2019)
2019-04-11	3	Acceptance of Service by U.S. Attorney Re: accepted summons and complaint on behalf of the United States Attorney (only). (sg, ) (Entered: 04/12/2019)
2019-04-26	4	AFFIDAVIT of Service re: served Complaint upon Office of General Counsel, NTSB by Certified Mail on April 10, 2019 (DEVERS, CYNTHIA) (Entered: 04/26/2019)
2019-04-26	5	AFFIDAVIT of Service re: served Complaint upon U.S. Attorney's Office by Certified Mail on April 10, 2019 (DEVERS, CYNTHIA) (Entered: 04/26/2019)
2019-04-26	6	AFFIDAVIT of Service re: served Complaint upon William Barr, Esquire, Attorney General of US by Certified Mail on April 18, 2019 (DEVERS, CYNTHIA) (Entered: 04/26/2019)
2019-05-06	7	NOTICE of Appearance by MICHAEL S. MISKA on behalf of THE WOLK LAW FIRM with Certificate of Service(MISKA, MICHAEL) (Entered: 05/06/2019)
2019-05-31	8	STIPULATION to Amend Complaint by THE WOLK LAW FIRM. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(DEVERS, CYNTHIA) (ATTY TO RESUBMIT AMENDED COMPLAINT IN HARD COPY) Modified on 6/3/2019 (md). (Entered: 05/31/2019)
2019-06-03	9	AMENDED COMPLAINT against UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD filed by THE WOLK LAW FIRM, EXHIBITS. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit)(rf, ) (Entered: 06/04/2019)
2019-06-18	10	ORDER THAT THIS CASE IS REFERRED TO THE ASSIGNMENT CLERK FOR REASSIGNMENT BY RANDOM SELECTION IN THE SAME MANNER AS IF THE CASE WERE A NEWLY FILED CASE, ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 06/18/2019. 06/18/2019 ENTERED AND COPIES E-MAILED.(nds) (Entered: 06/18/2019)
2019-06-19	11	ORDER THAT THIS CASE IS REASSIGNED FROM HONORABLE EDUARDO C. ROBRENO TO HONORABLE TIMOTHY J. SAVAGE FOR ALL FURTHER PROCEEDINGS. SIGNED BY CLERK OF COURT KATE BARKMAN, CLERK OF COURT ON 6/18/19. 6/20/19 ENTERED AND COPIES E-MAILED. (va, ) (Entered: 06/20/2019)
2019-06-26	12	ORDER THAT PRETRIAL CONFERENCE SET FOR 7/16/2019 09:30 AM. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 6/26/19. 6/26/19 ENTERED AND COPIES E-MAILED.(rf, ) (Entered: 06/26/2019)
2019-07-03	13	ORDER THAT DEFENDANT SHALL RESPOND TO THE COMPLAINT NO LATER THAN 7/19/19. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 7/3/19. 7/3/19 ENTERED AND COPIES E-MAILED.(rf, ) (Entered: 07/03/2019)
2019-07-10	14	Report Of Rule 26(f) Meeting by UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD. (SMITH, STACEY) (Entered: 07/10/2019)
2019-07-16	15	Minute Entry - Report of Rule 16 Conference for proceedings held before HONORABLE TIMOTHY J. SAVAGE and all counsel on 7/16/19. (kw, ) (Entered: 07/17/2019)
2019-07-19	16	MOTION to Dismiss (Partially) filed by UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD.Memorandum, Certificate of Service.(SMITH, STACEY) (Entered: 07/19/2019)
2019-07-19	17	MOTION to Stay Pursuant to 5 U.S.C. § 552(a)(6)(C) filed by UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD.Memorandum, Certificate of Service. (Attachments: # 1 Exhibit 1)(SMITH, STACEY) (Entered: 07/19/2019)
2019-08-02	18	RESPONSE to Motion re 17 MOTION to Stay Pursuant to 5 U.S.C. § 552(a)(6)(C) filed by THE WOLK LAW FIRM. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R)(MISKA, MICHAEL) (Entered: 08/02/2019)
2019-08-02	19	RESPONSE to Motion re 16 MOTION to Dismiss (Partially) filed by THE WOLK LAW FIRM. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R)(MISKA, MICHAEL) (Entered: 08/02/2019)
2019-08-09	20	RESPONSE in Support re 16 MOTION to Dismiss (Partially) 9 First Amended Complaint filed by UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD. (SMITH, STACEY) (Entered: 08/09/2019)
2019-08-09	21	RESPONSE in Support re 17 MOTION to Stay Pursuant to 5 U.S.C. § 552(a)(6)(C) filed by UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD. (SMITH, STACEY) (Entered: 08/09/2019)
2019-10-10	22	MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 10/10/19. 10/10/19 ENTERED AND COPIES E-MAILED.(rf, ) (Entered: 10/10/2019)
2019-10-10	23	MEMORANDUM AND ORDER THAT MOTION TO PARTIALLY DISMISS (DOC. 16) IS GRANTED. FURTHER ORDERED THAT COUNTS I AND II OF THE PLAINTIFFS FIRST AMENDED COMPLAINT ARE DISMISSED. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 10/10/19. 10/10/19 ENTERED AND COPIES E-MAILED.(rf, ) (Entered: 10/10/2019)
2019-10-10	24	MEMORANDUM AND ORDER THAT ALL PROCEEDINGS ARE STAYED. THE CLERK SHALL PLACE CASE IN SUSPENSE. DEFENDANT SHALL FILE A STATUS REPORT REGARDING THE PLAINTIFFS FOIA REQUESTS EVERY 60 DAYS. WITHIN 10 DAYS OF FINALLY PROCESSING THE PLAINTIFFS FOIA REQUESTS, DEFENDANT SHALL ADVISE THE COURT THAT IT HAS DONE SO. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 10/10/19. 10/10/19 ENTERED AND COPIES E-MAILED.(rf, ) (Entered: 10/10/2019)
2019-12-09	25	STATUS REPORT Pursuant to the Court's October 10, 2019, Order by UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD. (SMITH, STACEY) (Entered: 12/09/2019)
2020-02-07	26	STATUS REPORT Pursuant to the Court's October 10, 2019 Order by UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD. (SMITH, STACEY) (Entered: 02/07/2020)
2020-04-07	27	STATUS REPORT (THIRD) Pursuant to the Court's October 10, 2019, Order by UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD. (SMITH, STACEY) (Entered: 04/07/2020)
2020-05-04	28	STATUS REPORT (FOURTH) Pursuant to the Court's October 10, 2019, Order by UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD. (SMITH, STACEY) (Entered: 05/04/2020)
2020-05-12	29	MOTION to Stay LIFT STAY filed by THE WOLK LAW FIRM.Memorandum, Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A)(DEVERS, CYNTHIA) (Entered: 05/12/2020)
2020-05-22	30	Response re 29 MOTION to Stay LIFT STAY by UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD. (Attachments: # 1 Exhibit 1) (SMITH, STACEY) (Entered: 05/22/2020)
2020-05-26	31	ORDER THAT MOTION TO LIFT STAY IS GRANTED. FURTHER ORDERED THAT CLERK SHALL TRANSFER THIS CASE FROM THE COURTS CIVIL SUSPENSE DOCKET TO THE ACTIVE DOCKET. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 5/26/20. 5/26/20 ENTERED AND COPIES E-MAILED.(rf, ) (Entered: 05/26/2020)
2020-09-29	32	ORDER THAT NO LATER THAN 10/30/20 THE NATIONAL TRANSPORTATION SAFETY BOARD SHALL FILE ITS MOTION FOR SUMMARY JUDGMENT. NO LATER THAN 11/23/20 THE WOLK LAW FIRM SHALL FILE ITS RESPONSE TO THE NTSB'S MOTION FOR SUMMARY JUDGMENT. NO LATER THAN 12/7/20 THE NTSB SHALL FILE ITS REPLY MEMORANDUM IF ANY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 9/29/20. 9/30/20 ENTERED AND COPIES E-MAILED.(rf, ) (Entered: 09/30/2020)
2020-09-29		MOTION FOR SUMMARY JUDGMENT DUE BY 10/30/2020. (rf, ) (Entered: 09/30/2020)
2020-10-30	33	MOTION for Summary Judgment filed by UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD.Memorandum of Law in Support of Motion for Summary Judgment. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(SMITH, STACEY) (Entered: 10/30/2020)
2020-11-30	34	RESPONSE in Opposition re 33 MOTION for Summary Judgment filed by THE WOLK LAW FIRM. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(DEVERS, CYNTHIA) (Entered: 11/30/2020)
2020-12-03	35	MOTION for Extension of Time to File a reply brief in support of its 33 motion for summary judgment ( filed by UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD.Certificate of Service.(SMITH, STACEY) (Entered: 12/03/2020)
2020-12-03	36	ORDER THAT DEFENDANT'S UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE A REPLY BRIEF IS GRANTED. THE DEFENDANT SHALL FILE ITS REPLY BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT NO LATER THAN 12/18/20; ETC.. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 12/3/20. 12/3/20 ENTERED AND E-MAILED.(JL ) (Entered: 12/03/2020)
2020-12-18	37	MOTION for Leave to File a Reply Brief in excess of the page limitation (UNOPPOSED) filed by UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD.Certificate of Counsel, Certificate of Service. (Attachments: # 1 Reply Brief)(SMITH, STACEY) (Entered: 12/18/2020)
2020-12-21	38	ORDER THAT MOTION IS GRANTED AND DEFENDANTS REPLY BRIEF IN SUPPORT OF SUMMARY JUDGMENT ATTACHED TO THE MOTION AS EXHIBIT 1 IS DEEMED FILED AS OF THIS DATE. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 12/21/20. 12/22/20 ENTERED AND COPIES E-MAILED.(rf, ) (Entered: 12/22/2020)
2020-12-21	39	DEFENDANTS REPLY BRIEF IN SUPPORT OFSUMMARY JUDGMENT, CERTIFICATE OF SERVICE by UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD. (rf, ) (Entered: 12/22/2020)
2021-07-08	40	ORDER THAT NO LATER THAN 7/21/21 THE DEFENDANT SHALL DELIVER TO CHAMBERS THE DOCUMENTS AT PAGES B-455 TO B-458 OF THE VAUGHN INDEX FOR IN CAMERA REVIEW. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 7/8/21. 7/8/21 ENTERED AND COPIES E-MAILED.(rf, ) (Entered: 07/08/2021)
2021-07-23	41	MEMORANDUM AND OPINION. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 7/22/21. 7/23/21 ENTERED & E-MAILED.(fdc) (Entered: 07/23/2021)
2021-07-23	42	MEMORANDUM AND ORDER THAT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 33 IS GRANTED. IT IS FURTHER ORDERED THAT JUDGMENT IS ENTERED IN FAVOR OF UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD AND AGAINST THE WOLK LAW FIRM. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 7/22/21. 7/23/21 ENTERED & E-MAILED.(fdc) (Entered: 07/23/2021)
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