Ydil Pham v. NTSBYdil Pham v. NTSB
On Petitions for Review of a Decision of the National Transportation Safety Board
Alan Armstrong argued the cause and filed the briefs for petitioner/cross-respondent.
Joshua M. Koppel, Attorney, U.S. Department of Justice, argued the cause for respondents/cross-petitioners. With him on the briefs were Brian M. Boynton, Acting Assistant Attorney General, Abby C. Wright, Attorney, Cynthia A. Dominik, Assistant Chief Counsel for Enforcement, Federal Aviation Administration, and Agnes M. Rodriguez and Casey Gardner, Attorneys.
Before: SRINIVASAN, Chief Judge, ROGERS and JACKSON*, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS,
I.
The FAA is authorized to issue “airman certificates,” which permit individuals to engage in a range of activities related to aviation.
The FAA is also required to establish a program for “preemployment, reasonable suspicion, random, and post-accident testing of airmen . . . for use of a controlled substance.”
Further, the FAA may revoke certificates if it “decides . . . that safety in air commerce or air transportation and the public interest require that action.”
II.
In August 2020, Pham, an experienced airline pilot, interviewed for a job with Private Jets. As a condition of employment, he was required to take a pre-employment drug test. Upon arrival at the test center, the test collector, Lois West, explained the testing procedures, including that he would need to produce a urine sample. Pham began the testing procedures but did not provide the required 45-milliliter urine sample, see
On November 5, 2020, the FAA issued an emergency order revoking Pham‘s airline transport pilot certificate and his airman medical certificates. Emergency Order of Revocation, FAA Case No. 2020 WA 910339 (Nov. 5, 2020) (hereinafter, the “Revocation Order“). The Revocation Order stated that Pham‘s failure to remain at the test center until the collection process was completed constituted, pursuant to
Before an administrative law judge (“ALJ“) for the Board, West testified that Pham had provided an insufficient urine sample and had told her that he was unable to stay at the test center any longer. See NTSB Hearing Tr. (Nov. 23-24, 2020) at 19-20. West also testified that she informed Pham that leaving before the test collection process was completed would be considered a refusal to take a test. Id. at 20. West denied giving Pham permission to leave the test center and testified that she had told Pham that “he would have to get a whole new form from [his] job” after leaving because, once she indicated a refusal on his testing form, she could not use that form again. Id. at 21. Although West could not recall whether she informed Pham about the shy-bladder procedure, she noted that she was trained to do so. Id. at 20, 39. West further testified that after Pham left, she contacted Boone to notify
Pham admitted in his testimony that the urine sample he produced was deemed insufficient, id. at 111, and claimed that when he asked West if he could go to lunch and come back to finish the test, she granted him permission to do so, stating that Private Jets could send a new application if Pham returned, id. at 112. Pham testified that West neither gave him shy-bladder instructions nor told him that leaving the test center would be deemed a refusal, claiming that he would not have left the center had he been so informed. Id. at 113-14.
The ALJ found that West‘s testimony was “very credible as to advising [Pham] that” leaving the test center before completing the testing process “was a refusal,” id. at 158, noting that her testimony was corroborated by paperwork she had filled out the day the test began, id. at 157, Exh. A-2. By contrast, the ALJ found Pham‘s testimony was unpersuasive, because as an air transport pilot, Pham was held to a “higher standard” and should have known the relevant regulations. Id. at 158. The ALJ specifically found that Pham (1) had provided a urine sample that was “insufficient” in volume; (2) “was advised that [leaving the test center] constituted a refusal“; and (3) “was advised that, if he left, he would have to have another confirmation form when he returned.” Id. at 159. Therefore, the ALJ concluded that the FAA had proven a violation of its drug-testing regulations and affirmed the FAA‘s revocation of Pham‘s certificates. Id. at 159-61.
Pham appealed the ALJ‘s initial decision to the Board. The Board deferred to the ALJ‘s credibility determinations, Opinion and Order, NTSB Order No. EA-5889, at 17-21 (Jan. 4, 2021) (hereinafter, the “NTSB Order“), and affirmed the ALJ‘s determination that Pham had refused a drug test, id. at 21-25. In response to Pham‘s argument that he did not receive a shy-bladder warning as
Pham petitioned for review, and the FAA filed a cross-petition for review.
III.
The court must uphold the Board‘s decision “unless it is ‘arbitrary, capricious,
A.
Pham principally contends that the Board lacked substantial evidence to conclude that he refused a drug test because he was not given a shy-bladder warning and was allegedly given permission to leave. He also contends that the sample collector “spoliated” evidence, Pham Br. 41, and that the Board applied a strict-liability standard, both of which violated his constitutional rights. None of these challenges is persuasive.
Substantial evidence “is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Chritton, 888 F.2d at 856 (internal citation and quotation marks omitted). The court must accept all “reasonable credibility determinations” made by the ALJ and approved by the Board. Dickson v. NTSB, 639 F.3d 539, 542 (D.C. Cir. 2011) (internal citation and quotation marks omitted). Here, the ALJ evaluated the entire record as well as various inconsistencies in testimony. The ALJ reasonably found that West was more credible than Pham and concluded that, in violation of
Undeterred, Pham contends that the Board had no factual basis for its refusal finding because he did not receive the shy-bladder instructions required by
Pham contends that the claims against him should have been dismissed because the test collector disposed of his sample in violation of
Nor, contrary to Pham‘s view, did the Board apply a strict-liability rule in violation of its own precedent and the Due Process Clause. Rather, the Board noted that the ALJ “considered the witnesses’ testimonies, assessed the witnesses’ credibility, reviewed the exhibits, and weighed the parties’ arguments,” id. at 28, and relied on evidence that Pham was warned that leaving the test center before providing an adequate sample would constitute a refusal to test, id. at 25.
The court therefore denies Pham‘s petition for review.
B.
In its cross-petition, the FAA contends that the Board acted contrary to law by reducing Pham‘s sanction from revocation of his certificates to a 180-day suspension. In particular, the Board is required to defer to the FAA‘s sanction determination if it is reasonable, but the Board did not exercise deference. Further, the FAA contends that the Board acted contrary to law by suspending Pham‘s medical certificates for 180 days because FAA regulations make Pham ineligible to hold such certificates for two years. The FAA contends that the Board‘s choice of sanction was also arbitrary and capricious because it deviated from Board precedent.
1.
The Federal Aviation Act,
Pham‘s case, however, differs from Martin to the extent the FAA seeks deference to its application of a policy statement that guides its enforcement discretion rather than an interpretation of its rule as in Martin, 499 U.S. at 148-49. Further, the rulemaking agency‘s interpretation in Martin was issued as part of a formal citation against an employer. Id. at 157. “[L]ess formal means of interpreting regulations,” such as “enforcement guidelines,” are “entitled to some weight on judicial review” but “not entitled to the same deference” as a formal citation. Id. As such, the approach in Martin instructs deference to FAA‘s enforcement guidelines and sanction determination but does not specify the level of deference the Board owes. Still, the Supreme Court has held that courts should overturn an agency‘s choice of remedy only if it “is unwarranted in law or is without justification in fact.” American Power & Light Co. v. SEC, 329 U.S. 90, 112-13 (1946). Because the Board essentially acts as a court in the split-enforcement regime with the FAA, Martin, 499 U.S. at 154, this standard guides the court‘s review of the Board‘s sanction decision.
Although the Board states it deferred to the FAA‘s choice of sanction, see NTSB Order at 31, and lists two mitigating factors that may cast doubt on the FAA‘s sanction, id. at 31-32, it adjusted the sanction without finding that the sanction is unwarranted in law or without justification in fact.
The Board failed, however, to acknowledge the FAA‘s policy rationale for revoking Pham‘s license or to explain why those reasons were inapplicable or unjustified in Pham‘s case. Pham‘s reliance on the 2012 Pilot‘s Bill of Rights, which removed a statutory provision requiring the Board to defer to the FAA‘s interpretations of sanction guidance, Pub. L. 112-153, § 2(c)(2), 126 Stat. 1159, 1161 (2012) (amending
Pham‘s position that FAA Order 2150.3C is invalid because it is a legislative rule promulgated without notice and comment and the FAA‘s “enforcement practice [is] to always seek a revocation,” Pham Reply Br. 37, misrepresents FAA Order 2150.3C, which provides that refusal to test “generally,” but not categorically, warrants revocation, FAA Order 2150.3C at 9-13, 9-14. This is a classic example of a policy statement that does not require notice and comment.
Because the Board‘s decision did not accord appropriate deference, its modification of the FAA‘s sanction, on the reasoning it offered, was contrary to law.
2.
The FAA‘s challenge to the Board‘s suspension of Pham‘s medical certificates is persuasive. FAA regulations provide that an airman who has refused a drug test in the preceding two years is automatically ineligible to hold a medical certificate.
The court need not address whether the Board‘s decision to adjust the sanction deviated from Board precedent, because the court is instructing the Board on remand to manifest proper deference to the FAA‘s sanction choice and review it only for justification in law and fact. The Board‘s role in the split-enforcement regime may require it to deviate from its own precedent if the FAA has taken a different but reasonable position. “[C]onsistency with the FAA‘s position is more important than consistency with the Board‘s own.” Garvey, 190 F.3d at 584.
Accordingly, the court denies Pham‘s petition for review, grants the FAA‘s cross-petition for review, and vacates the Board‘s Order in part. The court remands this matter to the Board for further proceedings consistent with this opinion.