Pias v. Federal Aviation Administration

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 5, 2007
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
_______________________
No. 06-60680
Summary Calendar
_______________________
SCOTT J. PIAS,
Petitioner,
versus
FEDERAL AVIATION ADMINISTRATION,
Respondent.
__________________________________________________________
Petition for Review of a Final Order of the
National Transportation Safety Board
(NTSB No. EA-5222)
__________________________________________________________
Before REAVLEY, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
A Federal Air Surgeon refused to issue Scott Pias a third-class airman medical
certificate. The Administrative Law Judge (“ALJ”) and the National Transportation Safety
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
1
Board upheld that decision. We deny Pias’ petition for review for the following reasons:
1. Substantial evidence supports the denial. The ALJ heard extensive testimony
from two eminently qualified experts, one in aviation psychiatry, Dr. Almond,
and one in general psychiatry, Dr. Chesanow. The ALJ credited the opinions
of Drs. Almond and Chesanow, each of whom testified that Pias’ condition is
severe enough that without his prescribed medication, his symptoms are likely
to return and that it is possible that Pias could experience symptoms
notwithstanding his medication. Though Pias argues Drs. Almond and
Chesanow did not base their opinions on Pias’ specific case history, any gaps
in information were the result of Pias’ infrequent visits to his treating
psychiatrist after he began taking Celexa. Drs. Almond and Chesanow worked
from the records they had, which indicated that Pias’ symptoms returned when
he went off medication or changed medications. The ALJ also credited the
opinions of Drs. Almond and Chesanow in concluding that Pias’ medication,
Celexa, carried a significant risk of producing impairing side effects during the
unmonitored two-year period that would result upon issuance of the license
Pias sought.
2. Pias’ claims that the FAA’s denial violates the Americans with Disabilities Act
and the Rehabilitation Act suffer from the fatal flaw of making their debut in
2
Pias’ brief to this court, and we therefore do not consider those arguments.1
See Public Citizen, Inc. v. United States EPA, 343 F.3d 449, 461 (5th Cir.
2003). Pias should have presented those arguments to the ALJ and the NTSB
as part of the administrative determination. See, e.g., Clark v. Skinner, 937
F.2d 123, 126 (4th Cir. 1991); Cousins v. Sec’y of United States DOT, 880
F.2d 603, 610-11 (1st Cir. 1989) (en banc) (Breyer, J.).
PETITION DENIED.
1
We might also ignore this argument for inadequate briefing. See L & A Contracting Co.
v. Southern Concrete Servs., 17 F.3d 106, 113 (5th Cir. 1994).
3