Ydil Pham v. NTSB

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 13, 2021 Decided May 10, 2022
No. 21-1062
YDIL W. PHAM,
PETITIONER
v.
NATIONAL TRANSPORTATION SAFETY BOARD AND FEDERAL
AVIATION ADMINISTRATION,
RESPONDENTS
Consolidated with No. 21-1083
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
2
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, Circuit Judge: Ydil Pham and the Federal
Aviation Administration both petition for review of the
National Transportation Safety Board’s suspension of Pham’s
pilot and medical certificates for 180 days. Pham contends that
the Board erred in concluding that he refused a drug test when
he left the test center before providing the requisite amount of
urine because (1) he was not told he could drink water (a “shy-
bladder” warning), as required by regulation, (2) he was given
permission to leave, and (3) his urine sample was unlawfully
discarded. He also contends that the Board impermissibly
applied a strict-liability standard. The FAA objects by cross-
petition to the Board’s decision to suspend rather than revoke
Pham’s certificates as the FAA ordered, contending that (1) the
Board is obligated to defer to the FAA’s guidance and
interpretations of its regulations, (2) those regulations require
revocation of medical certificates for at least 2 years after a
refusal to test, and (3) the Board deviated from its precedent
without explanation. For the following reasons, the court
denies Pham’s petition and grants the FAA’s cross-petition.
I.
The FAA is authorized to issue “airman certificates,”
which permit individuals to engage in a range of activities
related to aviation. 49 U.S.C. §§ 44702(a), 40102(a)(8),
*
Circuit Judge Jackson was a member of the panel at the time the
case was argued but did not participate in this opinion.
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44711(a). Pursuant to this authority, it issues six types of pilot
certificates. 14 C.F.R. § 61.5(a). Among other requirements,
pilots must be “physically able” to perform their duties, 49
U.S.C. § 44703(a), and must obtain a “medical certificate”
certifying their physical fitness to pilot planes as measured
against specific criteria, see 14 C.F.R. § 61.23 and pt. 67.
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.” 49 U.S.C. § 45102. FAA regulations require that
each test subject provide at least 45 milliliters of urine for a
drug test. 49 C.F.R. § 40.65(a). If the test subject fails to do
so, the collector must follow “shy-bladder” procedures, under
which the collector must discard the specimen and “[u]rge the
[subject] to drink up to 40 ounces of fluid.” Id. § 40.193(b). If
the subject leaves the test center before the collection is
completed, the departure is deemed a refusal to test. Id.
§ 40.191(a)(2).
Further, the FAA may revoke certificates if it “decides . . .
that safety in air commerce or air transportation and the public
interest require that action.” 49 U.S.C. § 44709(b)(1)(A).
“Refusal . . . to take a [required] drug or alcohol test . . . is
grounds for . . . [s]uspension or revocation” of a pilot
certificate, 14 C.F.R. § 120.11, and disqualifies the pilot from
holding any of the three classes of medical certificate for two
years from the refusal to test, id. §§ 67.107(b)(2), 67.207(b)(2),
67.307(b)(2). Adversely affected individuals may appeal an
FAA order to the National Transportation Safety Board
(hereinafter, the “Board”). 49 U.S.C. § 44709(d).
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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 49 C.F.R. § 40.65(a), and left the test center. West
reported Pham’s refusal to test to Private Jets’ drug testing
manager, Cindy Boone, who, pursuant to FAA guidance, see
FAA Drug and Alcohol Compliance Enforcement Inspector
Handbook, FAA Order 9120.1D, at 43 (Aug. 9, 2018), notified
the FAA that Pham had refused a drug test.
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 49 C.F.R.
§ 40.191(a)(2), a refusal to submit to a required drug test,
Revocation Order at 2, and that Pham, therefore, “lack[ed] the
qualifications necessary to hold [an airline transport pilot
certificate] and any class of airman medical certificate,” id. at
3. The revocations were made effective immediately, id. at 3,
because Pham’s “refusal to submit to FAA-required drug
testing demonstrates that [he] . . . lack[s] the degree of care,
judgment, and responsibility required of the holder of a pilot
certificate and any class of airman medical certificate,” id. at 4.
Pham appealed to the Board.
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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 her of Pham’s failure
to complete the test. Id. at 33–34. Boone’s testimony
confirmed that West told her that Pham left the test center
before completing his drug test, although West had warned him
that leaving would be considered a refusal. Id. at 61. Boone
reported Pham to the FAA, she explained, because she is
required to report any refusal of a drug test. Id. at 62–63.
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,
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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 49 C.F.R. § 40.193(b) required, the
Board observed that “West explained the most important part:
leaving before providing an adequate sample constitutes a
refusal.” Id. at 25. The Board also rejected Pham’s argument
that the ALJ had improperly applied a strict-liability standard,
finding that the ALJ “considered the witnesses’ testimonies,
assessed the witnesses’ credibility, reviewed the exhibits, and
weighed the parties’ arguments.” Id. at 28. Further, it rejected
Pham’s argument that discarding his sample constituted
spoliation of evidence, inasmuch as Pham was sanctioned
because he left the test center, not because his sample tested
positive. Id. at 29. The Board sua sponte reviewed the FAA’s
revocation sanction and reduced it to a 180-day suspension,
identifying two “mitigating factors.” Id. at 31–32. First, there
was no clear evidence that Pham was informed he could drink
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water to produce another sample. Id. at 31. Second, Pham
could have been confused by West’s statement that he would
need a new form if he returned, because Pham may have
interpreted that as a suggestion that a new test was possible. Id.
at 32.
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, an abuse of discretion, or otherwise not
in accordance with law,’ or ‘unsupported by substantial
evidence.’” Huerta v. Ducote, 792 F.3d 144, 153 (D.C. Cir.
2013) (quoting 5 U.S.C. § 706(2)(A), (E)) (internal citations
omitted). This court will “‘defer to the wisdom of the agency,
provided its decision is reasoned and rational . . . .’” Dillmon
v. NTSB, 588 F.3d 1085, 1089 (D.C. Cir. 2009) (quoting
Chritton v. NTSB, 888 F.2d 854, 856 (D.C. Cir. 1989)).
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
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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 49 C.F.R. § 40.191(a)(2), Pham had refused
a drug test by failing to remain at the test center until the testing
process was complete. NTSB Hearing Tr. (Nov. 23–24, 2020)
at 156–61. The Board stated that it deferred to the ALJ’s
credibility findings and agreed that Pham had refused a drug
test. See NTSB Order at 1–2, 21. In addition to West’s
testimony, other evidence adequately supports this finding. For
example, the Custody and Control Form stated that Pham
refused a drug test, id. at Exh. A-2, and West testified that the
form reflected her recollection of events, id. at 28–29. Private
Jets’ drug testing manager, Cindy Boone, testified about her
telephone call with West as reflected in Boone’s email to the
FAA. Id. at 61, 64, Exh. R-6. And Pham admitted that he left
the test center without providing a sufficient urine sample. Id.at 117–18.
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 49 C.F.R. § 40.193(b)(2). The
Board acknowledged that the record was unclear but found that
the test collector “explained the most important part: leaving
before providing an adequate sample constitutes a refusal.”
NTSB Order at 25. The Board reasonably concluded that
because the sanction was premised on Pham leaving the test
center before completing the testing process, see NTSB
Hearing Tr. (Nov. 23–24, 2020) at 159–60 (citing
49 C.F.R. § 40.191(a)(2)), the collector’s failure to mention
shy-bladder procedures was “not fatal to the [ALJ’s]
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determination” that Pham had refused a drug test, NTSB Order
at 24. As to Pham’s testimony that the test collector gave him
permission to leave when she said he would need a new form
to return, the Board acknowledged that this statement might
confuse a “reasonable person” by suggesting that a “new test
was possible.” Id. at 25. But that confusion did not alter the
fact that Pham was “notified [] that if he left the facility, it
would be a refusal,” id. at 22–23, yet still “left the testing
facility without providing an adequate specimen and[,]
therefore, violated the applicable regulation,” id. at 25. And
contrary to Pham’s contention, there is no inconsistency
between the ALJ’s finding that Pham was advised that his
leaving the facility would constitute a refusal to test and the
finding that Pham was advised he would need a new
confirmation form if he returned: the need for a new
confirmation form for a future test is fully consistent with
treating a departure from the facility as a refusal to complete
the current test.
Pham contends that the claims against him should have
been dismissed because the test collector disposed of his
sample in violation of 49 C.F.R. § 821.19(c), and that although
49 C.F.R. § 40.193(b)(1) requires disposal of insufficient
specimens, the provision is unconstitutional because it destroys
exonerating evidence in violation of the Due Process Clause of
the Fifth Amendment. The Board reasonably concluded there
was no violation of 49 C.F.R. § 821.19(c); the regulation
prohibits disposal of specimens only when a judge orders
production of the specimen or there is a timely request to
preserve the sample, neither of which occurred here. NTSB
Order at 29. Pham’s constitutional objection is meritless; the
urine sample could not have been exculpatory because the issue
is not whether the sample was positive but whether Pham
refused a test by leaving the test center before the process was
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complete. Id. In any event, Pham cites no precedent holding
that disposal of an insufficient sample is unconstitutional.
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, 49 U.S.C. §§ 40101 et seq.,
creates a “‘split-enforcement’” regime in which the FAA has
regulatory and enforcement authority, and the Board has
adjudicatory authority. Garvey v. NTSB, 190 F.3d 571, 573
(D.C. Cir. 1999) (quoting Hinton v. NTSB, 57 F.3d 1144, 1147
n.1 (D.C. Cir. 1995)). In Martin v. Occupational Safety &
11
Health Review Commission, 499 U.S. 144 (1991), the Supreme
Court held that the agency with adjudicative power in a split-
enforcement regime would play a role similar to a “court in the
agency-review context” and review the rulemaking agency’s
interpretations of its rules “only for consistency with the
regulatory language and for reasonableness.” Id. at 154–55.
This court has similarly held that the Board and the court “must
defer to the FAA’s interpretations of its own aviation
regulations.” Garvey, 190 F.3d at 577 (citing Martin, 499 U.S.
at 147, 150–57). FAA guidance provides that revocation is an
appropriate sanction for refusal to test. U.S. Department of
Transportation, FAA Order 2150.3C, at 9-14, Fig. 9-5(11)
(Sept. 18, 2018). So, the FAA contends that the Board
improperly “substituted its own judgment for the [FAA’s]” in
adjusting the sanction, exceeding its role in the split-
enforcement regime. FAA Br. 38.
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
12
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. 14 C.F.R.
§ 120.11 provides that a refusal to test is grounds for
“revocation of any [airman] certificate,” and 14 C.F.R.
§§ 67.107(b)(2), 67.207(b)(2), 67.307(b)(2) provide that a
refusal to test in the prior two years disqualifies a pilot from
holding medical certificates. The FAA’s sanction had
justification in fact, as the FAA found that Pham had been
warned that leaving the test center before providing a sufficient
urine specimen would be considered a refusal to test but he left
anyway. Revocation Order at 2. The FAA concluded this
demonstrated that Pham lacked “the degree of care, judgment,
and responsibility required of a certificate holder.” Id. at 4.
“Air safety depends on the willingness of certificate holders . . .
[to submit] to drug tests,” and Pham’s refusal “betray[ed] the
public trust.” Id. Pursuant to 49 U.S.C. § 44709(b)(1), the
FAA can revoke certificates upon determining that “safety in
air commerce or air transportation and the public interest”
require revocation.
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 49
U.S.C. § 44709(d)(3)), does not advance his challenge to the
FAA’s cross-petition. Removing a provision that provided for
13
deference is not the equivalent of enacting a contrary provision
disallowing deference, and Pham identifies no reason the court
should read the removal of the provision in this situation as an
attempt to preclude deference by the Board. In fact, there is at
least some indication in the legislative history that the
provision was removed only because it was deemed
superfluous in light of Martin. See 158 Cong. Rec. S4733
(daily ed. June 29, 2012) (statement of Sen. Rockefeller and
concurrence of Sen. Inhofe); id. at H5102 (daily ed. July 23,
2012) (statement of Rep. Bucshon).
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. 5 U.S.C. § 553(b);
see Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 93–94 (D.C.
Cir. 1997).
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.
14 C.F.R. §§ 67.107(b)(2), 67.207(b)(2), 67.307(b)(2); see also
id. §§ 67.101, 67.201, 67.301. Because the Board lacks the
authority to invalidate FAA regulations, see Adm’r v. Ewing, 1
14
N.T.S.B. 1192, 1194 (1971); see also Garvey v. Kraley, NTSB
Order No. EA-4581, 1996 WL 785071, at *1 n.3 (Aug. 18,
1997) (citing Ewing, 1 N.T.S.B. at 1194), it was required to
apply the FAA’s medical certificate eligibility requirements.
The Board’s Order is contrary to law insofar as it allows Pham
to hold medical certificates between 180 days and 2 years after
he refused a drug test.
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.