Ydil Pham v. NTSB, 33 F.4th 576

Ydil Pham, an airline pilot, took a pre-employment FAA-required urine drug test but produced an insufficient specimen (less than 45 mL) and left the test center before completion.
The test collector (West) testified she warned Pham that leaving before completion would be treated as a refusal; Pham testified she gave him permission to leave and did not give the shy-bladder (drink-water) instruction.
Private Jets reported the event to the FAA; the FAA issued an emergency order revoking Pham’s airman and medical certificates for refusal to test.
An NTSB ALJ found West credible, concluded Pham refused the test, and affirmed revocation; the full Board deferred to the ALJ on credibility, affirmed the refusal finding, but sua sponte reduced the sanction to a 180-day suspension citing two mitigating factors (uncertainty about shy-bladder instruction and possible confusion about needing a new form).
Pham petitioned for review; the FAA cross-petitioned arguing the Board should have deferred to the FAA’s revocation sanction and that FAA regs bar medical certificates for two years after a refusal.
The D.C. Circuit denied Pham’s petition, granted the FAA’s cross-petition, held the Board erred by not affording appropriate deference to the FAA’s sanction decision, held the Board could not allow medical certificates during the two-year ineligibility period, vacated the Board’s order in part, and remanded for further proceedings.

Issue	Pham's Argument	FAA's Argument	Held
Substantial-evidence for refusal finding	Pham: he was not warned about shy-bladder and was permitted to leave; no refusal.	FAA: collector warned leaving would be refusal; record (forms, witnesses) supports refusal.	Court: substantial evidence supports refusal; ALJ credibility findings upheld.
Effect of missing shy-bladder instruction	Pham: omission invalidates refusal finding.	FAA: refusal finding rests on departure, not on lack of shy-bladder instruction.	Court: missing shy-bladder instruction not fatal because sanction based on leaving before completion.
Alleged spoliation (discarding insufficient specimen) / Due Process	Pham: disposing specimen destroyed potentially exculpatory evidence; unconstitutional.	FAA: regs require disposal of insufficient specimens; issue is refusal to remain, not test result.	Court: no violation of preservation rule; specimen could not be exculpatory on the refusal issue.
Board’s reduction of sanction / deference to FAA; medical-certificates eligibility	Pham: Board properly reviewed sanction and mitigated.	FAA: Board should defer to FAA’s reasonable enforcement policy favoring revocation; regs bar medical certificates for 2 years after refusal.	Court: Board failed to accord appropriate deference to FAA’s sanction rationale; Board cannot reinstate medical certificates during the two-year ineligibility—vacated in part and remanded.

Huerta v. Ducote, 792 F.3d 144 (D.C. Cir. 2013) (standard of review for NTSB decisions).
Dillmon v. NTSB, 588 F.3d 1085 (D.C. Cir. 2009) (deference to agency if reasoned and rational).
Chritton v. NTSB, 888 F.2d 854 (D.C. Cir. 1989) (definition of substantial evidence and scope of review).
Dickson v. NTSB, 639 F.3d 539 (D.C. Cir. 2011) (acceptance of reasonable credibility determinations).
Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144 (1991) (reviewing court must assess agency interpretations for consistency and reasonableness in split-enforcement contexts).
American Power & Light Co. v. SEC, 329 U.S. 90 (1946) (remedy choice overturned only if unwarranted in law or without justification in fact).
Garvey v. NTSB, 190 F.3d 571 (D.C. Cir. 1999) (Board and courts generally defer to FAA interpretations in split-enforcement regime).
Syncor Int’l Corp. v. Shalala, 127 F.3d 90 (D.C. Cir. 1997) (distinguishing policy statements and enforcement guidelines from binding rules).