513 F. App'x 1
D.D.C.2013Background
- FAA revoked Pasternack's airline transport pilot, flight instructor, and ground instructor certificates for allegedly refusing a mandatory drug test.
- NTSB upheld the revocation; this court previously vacated the Board’s decision for lack of substantial evidence (Pasternack v. NTSB, 596 F.3d 836 (D.C. Cir. 2010)).
- After remand, the NTSB again upheld punitive FAA sanctions against Pasternack in 2012.
- Pasternack was randomly selected for drug testing on June 1, 2007; he initially could not provide a sufficient urine sample.
- He left the testing facility and returned later, and the facility allowed him to provide an adequate sample; circumstances of leaving were disputed.
- Under 49 C.F.R. § 40.191(a)(2), failure to remain until completion constitutes a refusal; the Board held Pasternack did not have implicit permission to leave.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pasternack's leaving the facility implied permission to depart | Pasternack contends he had implicit permission to leave and return. | Board concluded no implicit permission existed. | No substantial evidence of lack of implied permission; reversed. |
| Whether the Board’s finding of no implicit permission was supported by substantial evidence | Record supports implicit permission based on circumstances. | Board reasonably concluded there was no permission to leave. | Substantial evidence did not support the Board’s conclusion; reversed. |
| Appropriate standard of review and scope of review for NTSB decisions | Challenge relies on substantial evidence review; Board misapplied standard. | Board findings are conclusive if supported by substantial evidence. | Court applied substantial evidence standard and found the Board lacked it. |
| Effect of the Board’s decision on the petition for review | Remand should lead to vacatur of the Board’s order. | Board’s decision should be sustained unless clearly erroneous. | Petition granted; Board's order vacated and case remanded. |
Key Cases Cited
- Pasternack v. NTSB, 596 F.3d 836 (D.C. Cir. 2010) (precedent on substantial evidence and review of NTSB decisions)
- Garvey v. NTSB, 190 F.3d 571 (D.C. Cir. 1999) (substantial evidence standard and review framework)
- Van Dyke v. NTSB, 286 F.3d 594 (D.C. Cir. 2002) (arbitrary and capricious review; evidentiary sufficiency)