LaCourse v. PAE Worldwide Incorporated et al

Filing 30

MEMORANDUM AND ORDER granting 24 The United States Air Force's Motion to Dismiss; denying as moot 1 Plaintiff Patricia LaCourse's Motion to Enforce Subpoena Duces Tecum; denying as moot 13 Plaintiff Patricia LaCourse's Second Mo tion to Enforce Subpoena Duces Tecum; denying as moot Defendant PAE's Motion to Require CT Scan Prior to Disassembly and Further Inspection; and directing all parties involved to take steps to expeditiously resolve the matter at the agency level. Signed by Judge Marvin J. Garbis on 11/14/2017. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
PATRICIA LACOURSE

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Plaintiff
vs.

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* CIVIL ACTION NO. MJG-17-1031

PAE WORLDWIDE INCORPORATED,
et al.

*
*

*

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Defendants
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*

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*

MEMORANDUM AND ORDER
The Court has before it Plaintiff Patricia LaCourse’s (First)
Motion to Enforce Subpoena Duces Tecum [ECF No. 1], Plaintiff
Patricia LaCourse’s Second Motion to Enforce Subpoena Duces Tecum
[ECF No. 13], the United States Air Force’s Motion to Dismiss [ECF
No. 24], Defendant PAE’s Motion to Require CT Scan Prior to
Disassembly and Further Inspection [mailed to chambers and dated
September 14, 2017], and the materials submitted relating thereto.
The Court has held a teleconference on the record regarding these
motions and has had the benefit of arguments of counsel.

I.

BACKGROUND
On November 6, 2014, Plaintiff Patricia LaCourse’s husband, a

civilian Department of Defense employee, was killed when the F-16
aircraft that he was piloting crashed.

Plaintiff filed the

underlying suit against the civilian defense contractor PAE

Worldwide Inc., and others (collectively, “Defendants”), for
negligent maintenance of the F-16, in the United States District
Court for the Northern District of Florida.1
The United States Air Force (“Air Force”) is not a party to the
underlying case.

But, because the Air Force owned the aircraft

involved, it retained control of all evidence related to the crash.
Patricia LaCourse and PAE (collectively, “the Parties”) issued a
Joint Touhy Request, followed by two subpoenas, seeking evidence
under the Air Force’s control.

A. The Crash
Matthew LaCourse, the decedent, was a former fighter pilot in
the Air Force with experience flying F-16s.

In 2014, Mr. LaCourse

died when the plane he was flying crashed into the Gulf of Mexico.
The Parties advance competing views of the cause of the crash.
Plaintiff’s theory is that the crash was caused by certain problems
in the F-16’s hydraulic systems, which are responsible for moving
the aircraft’s flight controls, analogous to the power steering in
a car.

The F-16’s maintenance records show that the aircraft had

hydraulic problems in the weeks and days preceding the crash.
Defendants contend that the crash was not caused by any
mechanical or hydraulic problems, but was instead due to the decedent
1

Case No. 3:16CV-00170-RV-CJK.
2

being unable to properly pilot the plane, perhaps due to his health
and excess gravity forces shortly before he crashed.

B. Plaintiff’s First Motion to Enforce
Plaintiff Patricia LaCourse’s (First) Motion to Enforce
Subpoena Duces Tecum requested unclassified maintenance
instructions (i.e., technical orders, or “TOs”) and video footage
of the underwater recovery of the aircraft.
No. 1.

Pl.’s Mot. at 4, ECF

The Air Force produced what they allege to be all of the

requested items.

Air Force’s Opp. at 2-3, ECF No. 17.

C. Plaintiff’s Second Motion to Enforce
Plaintiff Patricia LaCourse’s Second Motion to Enforce Subpoena
Duces Tecum [ECF No. 13] requested discovery regarding the hydraulic
filter from the aircraft wreckage that was recovered from the Gulf
of Mexico.2
The record reflects the following facts.

On December 9, 2016,

the Air Force responded to the Parties’ Joint Touhy request by letter.
Pl.’s Opp. Ex. A, ECF No. 27-1.
responses by the Air Force.

2

This was one of several formal

Pl.’s Opp. Ex. B at 1, ECF No. 27-2.

During the teleconference held October 30, 2017, the Air Force
explained that this filter may actually be a fuel filter and not a
hydraulic filter. For purposes of this Memorandum and Order, the
Court will refer to this filter as a hydraulic filter.
3

Notably, in response to the Parties’ request to have an “inspection
of the aircraft wreckage” and to have an “inspection of the aircraft
hydraulic and flight control systems and their component parts to
include disassembly,” the Air Force stated that the Parties may
contact Captain Joel Andreason to arrange inspections.
Ex. A ¶¶ 3-4, ECF No. 27-1.

Pl.’s Opp.

The Air Force did not deny those requests.

On March 29, 2017, counsel for Plaintiff contacted Captain
Nicholas Cooper to follow up on some of the requests, including the
request for inspection of the hydraulic filter.
Dismiss Ex. A at 2-3, ECF No. 24-2.

Air Force’s Mot.

In this email, the Parties

outlined a proposed protocol for inspection of the filter.

Id.

At

the time, Plaintiff appeared to be amenable to conducting an
inspection on an Air Force base if the right equipment was present,
although she stated that she was considering the use of some private
laboratories.

Id.

On April 5, 2017, counsel for the Plaintiff wrote another
follow-up email, this time with specific details about the testing
protocols she wished to have followed.

See Pl.’s Second Mot. Enforce

Ex. F at 1, ECF No. 13-8 (“I have also attached proposed protocols
to this email”).

In this April email, the Plaintiff explained that

it wishes to have its experts conduct a CT scan and other tests on
the F-16’s hydraulic filter on two separate off-base laboratories
equipped to perform such an inspection.
4

See Pl.’s Second Mot.

Enforce Ex. F at 3 and 11, ECF No. 13-8.

This would require first

shipping the hydraulic filter from the Air Force base in Florida to
a private laboratory in Maple Grove, Minnesota, and then to another
private laboratory in Marietta, Georgia.

Id.

The Protocols also

laid out procedures for a disassembly of the filter and forensic
examination of the filter and any entrapped material.

Id.

Two days later, in an email to the Parties’ counsel denying the
requests, the counsel for the Air Force stated:
We have found no precedent where the Air Force
relinquished physical custody of Air Force
fighter aircraft to private individuals for
their private use. Though we appreciate the
measures the parties are looking to set up to
facilitate the shipping of our aircraft
component(s) outside our installation, we are
obliged to maintain full custody and control of
Air Force property and not risk the loss of F-16
components. Should the parties wish to conduct
the testing on base under the oversight of our
personnel, we can certainly coordinate such
additional inspection. However, as for the
request for the Air Force to relinquish its
custody and control of our property by placing
it in the mail and sending it to private
individuals, I am compelled to deny that request
as well. Please let us know if you wish to
arrange for the testing to occur on an Air Force
installation.
Pl.’s Opp. Ex. B at 3, ECF No. 27-2.3

3

Soon afterwards, Plaintiff

The Air Force also submitted an affidavit stating that the specific
request that was denied was “Plaintiff’s request to ship the Air
Force’s F-16 hydraulic filter to a private laboratory in Minnesota
and Georgia,” due to the Air Force’s obligation “‘to maintain full
5

filed the instant Second Motion to Enforce Subpoena Duces Tecum.
The Court held a teleconference on August 29, 2017 to
clarify the requests detailed in the Second Motion to Enforce
Subpoena Duces Tecum.

During the teleconference, the Court

noticed that the Parties appeared to have modified their
requests.

Following the conference, the Court ordered the

Parties to confirm the scope of their requests in writing.
Letter to Counsel of Record at 2, ECF No. 20.

See

Specifically,

the Court noted that “the request that was considered by the
Air Force and rejected did not include having this examination
done at the Air Force facility.”

Id. at 3.

On September 15, 2017, Plaintiff filed a status report
regarding her pending requests.
Report, ECF No. 23.

See Response and Status

In this status report, Plaintiff stated

that she was now “willing to forego the CT Scan of the filter
before disassembly”4 and was willing to have the filter
inspection and forensic examination to be done at an Air Force
facility.

Id. ¶¶ 4-6.

Plaintiff also added a request to

conduct a concurrent disassembly inspection of the Integrated
custody and control of Air Force property and not risk the loss of
F-16 components.’” Air Force’s Opp. Ex. A ¶ 19, ECF No. 18-1.
4
This change does not appear to have been approved by Defendant
PAE Worldwide, because Defendant subsequently mailed to
chambers a Motion to Require CT Scan Prior to Disassembly and
Further Inspection, requesting that the CT scan step not be
skipped.
6

Servo Actuators (“ISAs”) that was not previously rejected in
the Air Force’s April 7, 2017 email.

Id. ¶¶ 7-9.

The Air Force filed the instant Motion to Dismiss, arguing
that this Court no longer has subject matter jurisdiction over
the action because the Plaintiff is now asserting new Touhy
requests that had not been first rejected by the Air Force.

II.

LEGAL STANDARD
Pursuant to 5 U.S.C. § 301, executive agency and military

department heads “may prescribe regulations for the government of
his department, . . . and the custody, use, and preservation of its
records, papers, and property.”

5 U.S.C. § 301.

Section 301 “does

not authorize withholding information from the public or limiting
the availability of records to the public.”

Id.

The public may seek information or records in the custody of
these agencies through a subpoena pursuant to Touhy regulations.
Such regulations are commonly known as
“housekeeping” regulations . . . . Housekeeping
regulations that create agency procedures for
responding to subpoenas are often termed “Touhy
regulations,” in reference to the Supreme
Court’s decision in United States ex rel. Touhy
v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed.
417 (1951).
COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d 269, 272 n.3 (4th Cir.
1999).

The Air Force is governed by the Department of Defense’s
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Touhy regulations, 32 C.F.R. §§ 97.1-.6, and its own Touhy
regulations found in Air Force Instruction (“AFI”) 51-301.
When the government is not a party, the APA “provides the sole
avenue for review of an agency’s refusal to permit its employees to
comply with subpoenas.”

COMSTAT, 190 F.3d at 274.

government is immune from suit.

Otherwise, the

The APA “waives the government’s

sovereign immunity from suit and permits federal court review of
final agency actions.”

Id.

An agency action is final “only when

the action signals the consummation of an agency’s decisionmaking
process and gives rise to legal rights or consequences.”

Id.

(emphasis in original).
If the agency action is not final, the court may not intervene,
except in circumstances that are not applicable here.

See 5 U.S.C.

§ 704 (“Agency action made reviewable by statute and final agency
action for which there is no other adequate remedy in a court are
subject to judicial review”); Flue-Cured Tobacco Coop. Stabilization
Corp. v. U.S.E.P.A., 313 F.3d 852, 857 (4th Cir. 2002) (explaining
that absent an agency action that is made specifically reviewable
by statute, 5 U.S.C. § 704 limits judicial review to final agency
actions); Vill. of Bald Head Island v. U.S. Army Corps of Engineers,
714 F.3d 186, 194 (4th Cir. 2013) (“Section 704 of the
APA also requires that ‘agency action,’ to be subject to judicial
review, be ‘final agency action.’”) (emphasis in original).
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III. DISCUSSION
The Air Force argues that the precise request that was made by
Plaintiff and rejected by the Air Force under its Touhy regulations
was detailed in the April 5, 2017 email from John Gagliano to Michael
Bordera.

Pl.’s Second Mot. Enforce Ex. F at 1, ECF No. 13-8.

Specifically, the request was for a hydraulic filter inspection that
conformed to Plaintiff’s attached Protocols (i.e., requiring a CT
scan prior to disassembly, shipping the filter to two private
laboratories, and disassembling and inspecting the filter away from
an Air Force base).

That request was clearly denied by Michael

Bordera in the April 7, 2017 email.

Pl.’s Opp. Ex. B at 2, ECF No.

27-2.
Plaintiff then changed her request by removing the CT scan step,
allowing the filter to be disassembled and inspected on an Air Force
base, and adding a request to perform inspection of ISAs at the same
time.

See Response and Status Report, ECF No. 23.

The Court finds

that these requests have not been denied by the Air Force.5
Plaintiff argues that her original requests, to have an
“inspection of the aircraft wreckage” and to have an “inspection of
the aircraft hydraulic and flight control systems and their component
5

In fact, the denial email itself included an offer to discuss a
possible inspection that would occur on an Air Force base. Pl.’s
Opp. Ex. B at 2, ECF No. 27-2 (“Should the parties wish to conduct
the testing on base under the oversight of our personnel, we can
certainly coordinate such additional inspection.”).
9

parts to include disassembly,” are broad enough to cover these now
modified requests.

Pl.’s Opp. at 3-4, ECF No. 27; Pl.’s Opp. Ex.

A at ¶¶ 3-4, ECF No. 27-1.

Plaintiff seems to imply that the April

7, 2017 Air Force rejection email was also broad enough to encompass
a full rejection of Plaintiff’s original requests (for example, that
the “flight control systems” includes the ISAs).
However, Plaintiff’s arguments are unavailing because the Air
Force did not reject the request for an inspection altogether.
Rather, the Air Force stated that the Parties may contact Captain
Joel Andreason to arrange inspections.

Pl.’s Opp. Ex. A ¶¶ 3-4, ECF

No. 27-1.
In sum, the only request that has been denied, and which
constitutes a final agency action, is Plaintiff’s request for a
hydraulic filter inspection pursuant to specific protocols attached
to her April 5, 2017 email.6

Pl.’s Second Mot. Enforce Ex. F at 3

and 11, ECF No. 13-8.
Because Plaintiff no longer seeks those specific inspections
in private laboratories but now seeks a different inspection on an
Air Force base, the Air Force has not yet issued a final agency action

6

Defendant PAE Worldwide claims that the question of whether the Air
Force should be compelled to allow the CT scan is properly before
the Court. However, even if the Court had jurisdiction over that
specific procedure, for the reasons stated on the record, that
dispute needs to be resolved together with the other procedures
requested by Plaintiff.
10

that “signals the consummation of an agency’s decisionmaking
process” and “gives rise to legal rights or consequences.”
190 F.3d at 274.

COMSTAT,

Accordingly, the Court does not have jurisdiction

to entertain this action, 5 U.S.C. § 704, and the Air Force’s Motion
to Dismissed is GRANTED.7

7

The action would also be dismissed as not ripe for review, because
Plaintiff has not received a rejection from the Air Force on her new
or modified discovery requests. See Doe v. Virginia Dep’t of State
Police, 713 F.3d 745, 758 (4th Cir. 2013) (“a claim should be
dismissed as unripe if the plaintiff has not yet suffered injury and
any future impact ‘remains wholly speculative.’”). It remains
possible that the Air Force may accept her request to conduct an
inspection of the filter on an Air Force base.
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IV.

CONCLUSION
For the foregoing reasons:
1. The United States Air Force’s Motion to Dismiss [ECF No. 24]
is GRANTED.
2. Plaintiff Patricia LaCourse’s Motion to Enforce Subpoena
Duces Tecum [ECF No. 1] is DENIED as moot.
3. Plaintiff Patricia LaCourse’s Second Motion to Enforce
Subpoena Duces Tecum [ECF No. 13] is DENIED as moot.
4. Defendant PAE’s Motion to Require CT Scan Prior to
Disassembly and Further Inspection is DENIED as moot.
5. All parties involved shall take steps to expeditiously
resolve the matter at the agency level.
a. Plaintiff and Defendant shall promptly respond to the
correspondence from the Air Force dated September 29,
2017, including a clear statement of their discovery
requests.
b. The Air Force shall, within one month after the Parties’
responses, make a final agency decision with regard to
the Parties’ stated discovery requests.
SO ORDERED, this Tuesday, November 14, 2017.

/s/__________
Marvin J. Garbis
United States District Judge

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