Friedman v. Federal Aviation Administration
2016 U.S. App. LEXIS 20459
| D.C. Cir. | 2016Background
- Eric Friedman, a commercial pilot with insulin-treated diabetes mellitus (ITDM), holds a third-class FAA medical certificate and applied for a first-class certificate required for commercial airline work.
- FAA medical rules generally disqualify ITDM applicants but permit special issuances if the Federal Air Surgeon (FAS) is satisfied certification can be granted without endangering safety; the AME Guide sets evaluation protocols.
- In 2015 the FAA broadened its third-class ITDM protocol and then removed a first/second-class protocol, stating first/second-class applicants would be evaluated case-by-case by the FAS.
- The FAA repeatedly requested Friedman’s continuous glucose monitor (CGM) data (90 days), warned noncompliance could lead to denial, and set deadlines; Friedman refused, citing medical advice and Expert Panel support that CGM is unnecessary/less accurate for certification.
- After deadlines lapsed, the FAA issued a third-class renewal and stated Friedman’s first-class upgrade remained under consideration, effectively leaving him unable to obtain a first-class certificate or receive a formal denial.
- The D.C. Circuit held the FAA’s conduct constituted final agency action subject to review and remanded for the FAA to provide a reasoned explanation for denying (or for the de facto denial of) Friedman’s first-class application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FAA action was final and reviewable | FAA’s demand for CGM and decision to withhold action is a constructive denial; reviewable final action | FAA had not issued a final order; first-class application remained under review | Court: FAA’s communications and missed deadlines amounted to final agency action; reviewable |
| Whether courts can review FAA’s certification decision | Regulations supply standards (14 C.F.R. §67.401) so reviewable under APA | FAA contends ‘‘no law to apply’’ (unfettered discretion) | Court: Regulations provide a judicially manageable standard; review permissible |
| Whether FAA justified requiring 90-day CGM data | CGM request is arbitrary, medically unnecessary, costly, and not in AME Guide | FAA relied on Expert Panel to justify CGM utility and safety concerns | Court: FAA failed to articulate reasons in record; remand for explanation |
| Remedy for agency’s failure to explain | Court can treat inaction as denial and order explanation/remand | FAA argued no final action so no judicial remedy | Court: Remanded to FAA to provide reasons for its denial or to act on application |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (1997) (two-part finality test for reviewability)
- Flytenow, Inc. v. FAA, 808 F.3d 882 (D.C. Cir. 2015) (section 46110 construed with finality principles)
- Rhea Lana, Inc. v. Dep’t of Labor, 824 F.3d 1023 (D.C. Cir. 2016) (pragmatic, flexible finality inquiry)
- City of Dania Beach v. FAA, 485 F.3d 1181 (D.C. Cir. 2007) (expansive reading of "order")
- SecurityPoint Holdings, Inc. v. Transportation Security Administration, 769 F.3d 1184 (D.C. Cir. 2014) (letter constituting final agency decision)
- Safe Extensions, Inc. v. FAA, 509 F.3d 593 (D.C. Cir. 2007) (agency safety standard judicially reviewable)
- Drake v. FAA, 291 F.3d 59 (D.C. Cir. 2002) (argument that agency has ‘‘no law to apply’’)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (scope of judicial review of agency action)
- Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985) (review based on administrative record; remand when record inadequate)
- Sierra Club v. Thomas, 828 F.2d 783 (D.C. Cir. 1987) (court can treat inaction as denial and remand for explanation)