Friedman v. Federal Aviation AdministrationFriedman v. Federal Aviation Administration
Z.W. Julius Chen argued the cause for Petitioner. With him on the briefs were Gregory S, Walden and William Mongan. Pratik A. Shah, Washington, DC, entered an appearance.
Neal Kumar Katyal and Jaclyn L. Di-Lauro, Washington, DC, were on the brief for amicus curiae The American Diabetes Association in support of Petitioner.
Before: ROGERS, BROWN and PILLARD, Circuit Judges.
BROWN, Circuit Judge:
“I’ve never known an industry that can get into people’s blood the way aviation does.”
—Robert Six, founder of Continental Airlines
Petitioner Eric Friedman (“Friedman“), a commercial airline pilot, claims Respondent Federal Aviation Administration (“the FAA” or “the Agency“) has behaved in an arbitrary and capricious manner in assessing his request for a commercial airline pilot’s license. Friedman has been diagnosed with Insulin Treated Diabetes Mellitus (“ITDM“), and although he holds a third class medical certificate authorizing him to pilot non-commercial flights in the United States, he seeks the first class certificate necessary to serve as a commercial airline pilot. He argues the FAA has impermissibly conditioned issuance of a first class license on ninety days of continuous blood glucose monitoring, a costly and invasive procedure not medically necessary for his care. Since we believe the Agency’s unwavering position constitutes final action, we remand to the FAA to provide reasons for its denial.
I.
Congress has granted the FAA broad authority to regulate those “practices, methods, and proeedure[s] the Administrator finds necessary for safety in air commerce and national security.”
Regulations require the Federal Air Surgeon (“FAS“) to make his determination using standards published for each condition as set forth in the FAA’s Guide to Aviation Medical Examiners (“AME Guide“). See
For much of its history the FAA enforced a blanket ban on the issuance of medical certificates to individuals with ITDM, but in 1996 it reversed course and established criteria for pilots with ITDM to receive a third class medical certificate (but not a first class certificate). Since the policy change was adopted, there has been no medically related accident, incident, or inflight incapacitation, from any cause, of any such insulin treated special issuance pilot. In light of the strong record of third class pilots with ITDM, and in reliance on the expert analysis provided by an Expert Panel on Pilots with Insulin Treated Diabetes (“Expert Panel“)—convened by the American Diabetes Association (“ADA“) at the FAA’s request—the FAA amended its AME Guide to broaden the third class ITDM protocol to all classes of medical certificates on April 21, 2015.
On April 27, 2015, Friedman submitted a completed application for a first class license to the FAA. A few days later, on April 30, 2015, the FAA requested supplemental information, including “any and all information that you may have that is relevant to your condition, which may include ... (if applicable) continuous glucose monitor readings.” JA 73. The next month, Friedman inquired as to the FAA’s method for evaluating glucose testing results and stated “I do not use a continuous glucose monitor.” JA 31-32. Continuous Glucose Monitoring (“CGM“), according to the ADA, is an invasive procedure that “uses a sensor inserted under the skin to check glucose levels in tissue fluid. A transmitter sends information about glucose levels via radio waves from the sensor to a wireless monitor.” ADA Amicus Br. 14. This technique provides a “historical record of glucose levels over time” and can “provid[e] helpful information about historic trends in one’s blood sugar levels and how those levels have been affected by diet and exercise.”
On June 17, 2015, just two days after Friedman wrote to the FAA to note the Agency had requested information beyond its own published evaluation protocol, the FAA revised its AME Guide. The newly-minted version provided “[fjirst and second class applicants will be evaluated on a case-by-case basis by the Federal Air Surgeon’s Office” and omitted any protocol for evaluation. JA 469. Later, on October 6, 2015, the FAA again requested Friedman provide “any and all information that you may have that is relevant to your condition, which may include ... [a] report for continuous glucose monitoring (CGM) conducted for a minimum of 90 days.” JA 71. The letter informed Friedman his application would be denied if he did not indicate he planned to comply with the request within sixty days. JA 72. In response, Friedman again advised the FAA he did not possess any CGM data. This time, however, Friedman also presented letters from his physicians explaining CGM was not medically necessary in his case. The Expert Panel even submitted a letter in support of Friedman’s application to explain, “CGM systems have value, [but] they are neither necessary nor appropriate for making decisions on medical certification of pilots with diabetes” and are less accurate than the blood glucose data Friedman had already submitted. JA 65-66. On November 13, 2015, the FAA wrote to Friedman yet again to request CGM data and again cautioned that failure to respond within thirty days with an agree- ment
Thereafter, on December 1, 2015, the FAA wrote Friedman to explain it was “unable to proceed with further determination of [his] potential eligibility for special issuance of a first-class airman medical certificate until [the Agency] receive[d] the [CGM] information previously requested....” JA 53. On December 18, 2015, the FAS sent an additional letter informing Friedman his request for a first class certification “remains under consideration” and granting him a third class certificate—the certificate level he already held. JA 47-48.1 Specifically, the letter noted the FAS had reviewed the information submitted in Friedman’s April 27, 2015 application and granted the third class license in response. Ibid. It further advised Friedman “should not undergo a new FAA medical examination until advised to do so by the Aerospace Medicine Certification Division (AMCD).” JA 48.
II.
The threshold question in this case is whether the FAA has, either actually or impliedly, issued a final order eligible for judicial review. The Administrative Procedure Act (“APA“) authorizes judicial review of “final agency action for which there is no other adequate remedy in a court,” and “[a]gency action made renewable by statute.”
Here, the FAA contends it did not issue a final order regarding Friedman’s first class medical certificate application; it purportedly ruled solely on his independent request for a third class medical certificate and specifically indicated the first class certificate remained under review. See JA 47-48, 53. Accordingly, the Court initially considers whether the Agency’s admitted actions nonetheless meet the two-part test of finality:
First, the action must mark the consummation of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations .have been determined, or from which legal consequences will flow.
Bennett v. Spear, 520 U.S. 154, 177-78 (1997). Case law interpreting this standard is “hardly crisp,” and it “lacks many self-implementing, bright-line rules, given the pragmatic and flexible nature of the inquiry as a whole.” Rhea Lana, Inc. v. Dep’t of Labor, 824 F.3d 1023, 1027 (D.C. Cir. 2016). As a general principle, therefore, “the term ‘order’ in [Section 46110] should be read expansively.” City of Dania Beach v. FAA, 485 F.3d 1181, 1187 (D.C. Cir. 2007).
The specific facts presented here establish a constructive denial of Friedman’s application for a first class certificate.
In its October 6, 2015 letter, the FAA first expressly required CGM data from
Here, the FAA has issued no formal decision on Friedman’s application for a first class certificate. Despite his consistent refusal to provide the requested CGM data, the Agency has placed Friedman in a holding pattern—preventing him from obtaining any explicitly final determination on his application and thwarting the Court’s interest in reviewing those agency actions that, in practical effect if not formal acknowledgement, constitute “the consummation of the agency’s decisionmaking process” and determine “rights or obligations.” Bennett, 520 U.S. at 177-78; see also
Where an agency has clearly communicated it will not reach a determination on a petitioner’s submission due to petitioner’s recalcitrance but simultaneously refuses to deny the petitioner’s submission on those grounds, it has engaged in final agency action subject to this Court’s re- view.
The government, apparently ignoring the power of the Court to ensure justice in an area of law governed by a “pragmatic and flexible” approach, Rhea Lana, 824 F.3d at 1027, is content to distinguish the cases cited by Friedman on their specific facts. Air One Helicopters, Inc. v. FAA, 86 F.3d 880 (9th Cir. 1996), the Agency contends, applies only to a scenario where an agency and a private party find themselves at an impasse that neither is empowered to clear. Similarly, the FAA reads Air Line Pilots Ass’n, International v. Civil Aeronautics Board, 750 F.2d 81 (D.C. Cir. 1984), to apply only to situations where the private party has done everything in his power to comply with an agency’s request but the agency, nonetheless, excessively delays determination of his claims. Finally, the FAA asserts the doctrine of Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093, 1099 (D.C. Cir. 1970), reviewing “administrative inaction [that] has precisely the same impact on the rights of the parties as denial of relief,” does not apply since Friedman is free to trigger a new six-month license validity period at his option. The Agency has missed the forest for the trees. Nothing in our case law suggests the law of final agency action is confined to the specific facts of prior circuit cases.
To the contrary, the doctrine asks whether a particular agency action represents the “consummation of [its] decision-making process” and determines “rights or obligations.” Bennett, 520 U.S. at 177-78. The standard is met here. As described above, the FAA has set deadlines, counted down towards them, and then allowed them to pass without discussion; its actions suggest the FAA has made up its mind, yet it seeks to avoid judicial review by holding out a vague prospect of reconsideration. And, as a result of the FAA’s conduct, Friedman has been unable to resume his job as a commercial airline pilot at American Airlines, a job that requires a first class medical certificate. See Safe Extensions, Inc. v. FAA, 509 F.3d 593, 598 (D.C. Cir. 2007) (finding adequate legal consequences where an agency’s new test for runway lighting “effectively pro- hibits
III.
Since we hold Friedman’s case is subject to judicial review, we now proceed to the merits.
The FAA argues Friedman’s claims are insulated from judicial scrutiny as “there is no law to apply” to the FAA’s determination. Drake v. FAA, 291 F.3d 59, 70 (D.C. Cir. 2002); see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971). But the jurisprudence of unfettered discretion is inapplicable here. Several regulations provide the criteria upon which the FAS relies to determine whether Friedman may be granted a first-class certificate. Specifically, under
Arguing in the alternative, the FAA maintains Friedman’s license application was denied for refusal to comply with the Agency’s request for CGM data. To justify this decision, the FAA points to the Expert Panel’s letter in support of Friedman’s application, which acknowledged “CGM systems have value” and are “most useful in identifying trends and the direction and speed at which a person’s blood sugar may be changing.” JA 65-66. While the Expert Panel concluded treatment decisions for individuals with ITDM should not be based on CGM data alone—as the devices may be inaccurate and are, in any event, less accurate than fingerstick blood test results—it also noted CGM provides constant glucose monitoring results capable of detecting spikes and dips in interstitial glucose (indicative of actual blood glucose) that might have gone undetected via intermittent fingerstick measurements. Ibid; see also ADA Amicus Br. 13-14. Nonetheless, the FAA overstates the usefulness of this concession, as the Expert Panel does not ultimately recommend employing CGM data “for making decisions on medical certification of pilots with diabetes.” JA 66. It is not for us to say in the first instance whether or how CGM data might be of future use to the FAA in evaluating license applications. But it is clear the FAA has not borne its burden of justification. The FAA’s letters communicating its demand for CGM data to Friedman, despite his many requests for clarification, fail to articulate any rationale for consideration of the additional information. See Safe Extensions, 509 F.3d at 606 (finding no “substantial evidence” to support the FAA’s rationale where it offered “no evidence whatsoever” on the relevant issue).
The focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court. The task of the reviewing court is to apply the appropriate APA standard of review to the agency decision based on the record the agency presents to the reviewing court. If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.
Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985). Specifically, “the court can undertake review as though the agency had denied the requested relief and can order an agency to either act or provide a reasoned explanation for its failure to act.” Sierra Club v. Thomas, 828 F.2d 783, 793 (D.C. Cir. 1987).
In light of the complete absence of a relevant administrative record to review—and the inherent inequity in passing judgment on this matter without offering the Agency a chance to explain its reasoning—any analysis of the FAA’s denial would be imprudent. Accordingly, we remand this matter to the FAA to offer reasons for its denial of Friedman’s application for a first class medical certificate. Friedman’s additional allegations must await proceedings on remand.
* * *
The FAA has placed Friedman in administrative limbo—he has neither a first class medical certificate nor an official order denying him the certificate—and the only way out requires capitulation to the very requirement he seeks to challenge. The Agency cannot manipulate its own processes, threatening denial but then refusing to deny or otherwise take definitive action on Friedman’s application, in an effort to thwart judicial review.
So ordered.