568 F.3d 1315 (11th Cir. 2009), 08-15409, Swaters v. Osmus

Docket Nº:08-15409.
Citation:568 F.3d 1315
Opinion Judge:MARCUS, Circuit Judge:
Party Name:Jeffrey R. SWATERS, Petitioner, v. Lynne A. OSMUS, Acting Administrator, Federal Aviation Administration, Respondent.
Attorney:Michael J. Ferrin, Law Office of Michael J. Ferrin, West Palm Beach, FL, for Swaters. Agnes M. Rodriguez, FAA, Office of Chief Counsel, Washington, DC, for Osmus.
Judge Panel:Before MARCUS and PRYOR, Circuit Judges, and SCHLESINGER,[*] District Judge.
Case Date:May 26, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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568 F.3d 1315 (11th Cir. 2009)

Jeffrey R. SWATERS, Petitioner,


Lynne A. OSMUS, Acting Administrator, Federal Aviation Administration, Respondent.

No. 08-15409.

United States Court of Appeals, Eleventh Circuit.

May 26, 2009

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Michael J. Ferrin, Law Office of Michael J. Ferrin, West Palm Beach, FL, for Swaters.

Agnes M. Rodriguez, FAA, Office of Chief Counsel, Washington, DC, for Osmus.

Petition for Review of an Order of the National Transportation Safety Board.

Before MARCUS and PRYOR, Circuit Judges, and SCHLESINGER,[*] District Judge.

MARCUS, Circuit Judge:

Appellant Jeffrey Swaters, a pilot formerly employed by Spirit Airlines, had his pilot and medical certificates revoked by the Federal Aviation Administration (" FAA" ) after failing a random drug test. The FAA's decision was upheld by an administrative law judge (" ALJ" ), whose ruling was in turn affirmed by the National Transportation Safety Board (" NTSB" or " the Board" ). Swaters petitions for review of the NTSB's decision in this Court. After thorough review, we affirm the NTSB's decision and deny Swaters's petition.


The essential facts in the case are these. Swaters had been employed as a pilot by Spirit Airlines since 1999. On the evening of February 25, 2007, he arrived in San Juan, Puerto Rico during the course of a four-day trip. He spent the evening alone and met the rest of his crew-his first officer and three flight attendants-the following morning, February 26, 2007, at 4:55 a.m. On that day, Swaters and his first officer made flights from San Juan to Orlando, Florida; from Orlando to Fort Lauderdale, Florida; from Fort Lauderdale to Kingston, Jamaica; and from Kingston back to Fort Lauderdale. The last flight landed in Fort Lauderdale at 2:52 p.m.

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Swaters was met at the gate by Susan Wagner, Spirit Airlines' Manager for Pilot Base Operations in Fort Lauderdale, who told Swaters that he had been randomly selected to take a drug test that afternoon. Swaters apparently spent some time chatting amiably with Wagner and with Paul Olechowski, Spirit Airlines' Chief Pilot. It was 3:40 p.m. before Swaters was given the necessary paperwork to take to the testing facility. He was told to report to a collection site called Global MRO.

At around 4:20 p.m., Swaters phoned Olechowski to inform him that he had encountered car trouble and had been unable to reach the testing facility. Swaters then spoke with Toni Benson, Spirit Airlines' Drug and Alcohol Program Manager. Swaters told Benson that he was at a gas station and that his car had broken down. Because Global MRO closed at 4:30 p.m., Benson instructed Swaters to go to another facility, Concentra, which was open until midnight. She asked Swaters to get to the facility as soon as possible, and suggested that he take a cab. Swaters expressed unease at the idea of leaving his car in an unfamiliar part of town, and instead decided to replace and recharge his car battery.

Swaters subsequently arrived at Concentra between 6:30 p.m. and 7:10 p.m. 1 His sample was collected at 8:47 p.m. While at the facility, he signed and dated the following statement on the Federal Custody and Control Form (" CCF" or " custody form" ) used to keep track of his specimen: " I certify that I provided my urine specimen to the collector; that I have not adulterated it in any manner; each specimen bottle used was sealed with a tamper-evident seal in my presence; and that the information provided on this form and on the label affixed to each specimen bottle is correct." He also initialed the sealed specimen bottles.

The sample was then sent to Quest Diagnostics, Inc., a laboratory approved by the Department of Health and Human Services (" DHHS" ) to perform federally-mandated drug tests. On March 8, 2007, Quest reported to Spirit Airlines that Swaters's sample contained metabolites associated with three prohibited controlled substances: benzoylecgonine (a metabolite of cocaine); morphine; and 6-monoacetylmorphine (" 6-AM" or " 6-MAM" ), a metabolite associated specifically with heroin. The concentration of each substance was detected at levels far above the " cut-off points" allowed under federal regulations.2

Dr. Dale Plapp, one of Spirit's Medical Review Officers (" MROs" ), verified the results and reported them to Swaters. Swaters denied taking the drugs, and indeed denied having taken drugs at any time during his career as a pilot. However, he offered no explanation as to how the drugs could have shown up in his sample. Swaters requested that a so-called " split sample" of his urine specimen be submitted for testing at another facility. Accordingly, the specimen was sent by Quest to Diagnostic Sciences, Inc. (" DSI" ), another DHHS-approved testing facility. DSI reported the same results as those reported

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by Quest. The results were again confirmed by a Medical Review Officer.

Based on the finding of prohibited drugs in his system, Swaters was found to be in violation of Federal Aviation Regulations § 91.17(a)(3) and § 121.455(b). 3 On August 27, 2007, the FAA issued an emergency order revoking Swaters's Airline Transport Pilot and First Class Airman Medical certifications.4


A. Proceedings Before the ALJ

Swaters appealed the FAA's emergency order to the NTSB. Pursuant to the NTSB's rules of practice, the FAA filed the order of revocation as the complaint in the case, and a hearing was held before an NTSB administrative law judge on March 3 and 4, 2008. Since the evidence presented at the hearing is central to our resolution of this dispute, we pause here to recount important portions of various witnesses' testimony.

One key witness was Arthur Stachurski, the medical technologist at Concentra who collected Swaters's urine sample on February 26, 2007. Stachurski said that he had no specific recollection of having taken Swaters's urine specimen. However, he explained that he follows a standard set of procedures in collecting each sample. He described the procedures in this way:

What I do is, I fill up two vials, one 30 milliliters and one 15 milliliters, and then I put the labels that are on the CCF [on the vials], seal the bottles in front of the patient, and I have him initial them off, first and last initial. He does so. And then I put the specimen bottles in the bag in front of the employee,

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and I ask him to sign the CCF form stating that he has given me the urine, signed off on it, initialed them in his presence, and then I seal the bag in his presence as well.

R. at 306. The custody form is placed in the bag with the specimen bottles, and the bag is sent to a laboratory, such as Quest or DSI, for analysis.

Swaters also testified at the hearing. He claimed that he had not been allowed to witness certain of the steps described by Stachurski in the handling of his sample. In particular, he claimed that after his urine sample was poured into the two specimen bottles, Stachurski told him to dispose of the excess urine. According to Swaters, this allowed Stachurski to seal the bottles when Swaters was not present. Swaters also testified that he left the collection site after Stachurski told him he was " good to go," and that, as a result, Swaters never saw Stachurski place the specimen bottles in the plastic bag and seal it.

Finally, two expert witnesses testified at the hearing: the FAA called Dr. Robert White, DSI's Director of Clinical Chemistry, and Swaters presented Dr. Vina Spiehler, a pharmacologist certified in forensic toxicology. Each expert testified about the properties of the drugs in question; the extent to which the effects of the drugs might be observable in the behavior of a person under their influence; and about how long after ingestion the metabolites associated with the various drugs could be detected in urine.

Dr. White was asked whether it would be unusual for no physical symptoms to appear in a person who had taken these drugs within ten to twelve hours of having ingested them. He responded:

It depends on who's doing the observing, whether you've got a trained observer or not, first of all. Second of all, it depends on how much they took and it's the same thing after time and time again, you can go as low as a few molecules up to an overdose where somebody can't even move. It depends on how much they took.

R. at 355.

As for how long the metabolites associated with the various drugs remain present in urine, Dr. White testified that 6-AM metabolites stay in the system between two and ten hours. " It ought to be around for a couple of hours, may be out, depending on an individual's metabolism and their state of hydration, may be out to eight, ten hours." R. at 353. He was asked whether, given the level of 6-AM found in the sample at issue here, Swaters ingested the heroin within eight to ten hours of the test. Dr. White responded " I think so. And yes, this is a pretty substantial level in this case, so I would say well within that area." R. at 354.

Dr. Spiehler's testimony was largely consistent with Dr. White's. When asked about the observable symptoms associated with the different drugs, Dr. Spiehler said she " couldn't really extrapolate behavior or symptoms from urine levels." R. at 451. She said that cocaine was a stimulant and that heroin had a sedating effect. R. at 453. While she described the behavior of people under the influence of each drug individually, she stated that she had never personally observed a person on both drugs simultaneously. She explained that, taken together, the effects of the drugs

might be somewhat different. I've not actually seen a person go through conversion [from the effects of one drug to the...

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