Babbitt v. Magro
| Decision Date | 26 March 2010 |
| Docket Number | SE-18799 |
| Parties | J. RANDOLPH BABBITT, Administrator, Federal Aviation Administration, Complainant, v. BENJAMIN L. MAGRO, Respondent. NTSB Order No. EA-5515 |
| Court | Court of National Transportation Safety Board |
Adopted by the NATIONAL TRANSPORTATION SAFETY BOARD at its office in Washington, D.C. on the 25th day of March, 2010.
Respondent appeals the oral initial decision of Administrative Law Judge William A. Pope, II, in this matter, issued following an evidentiary hearing held on February 24, 2010.1[] By that decision, the law judge affirmed the Administrator's emergency order, 2[] which revoked all mechanic and medical certificates that respondent holds, including two second-class medical certificates. The Administrator's amended order, issued February 4, 2010, charged respondent with violating 14 C.F.R. § 120.33(b), based on the allegation that respondent performed a safety-sensitive function while he had a prohibited drug in his system.3[] The amended order alleged that respondent performed maintenance on a Bell helicopter on November 18, 2009, and that, on November 25, 2009, respondent submitted to a random drug test, which was positive for marijuana.4[] The amended order consequently alleged that respondent lacked the qualifications to hold any FAA-issued airman medical certificate, under 14 C.F.R. §§ 67.107(b)(2), 67.207(b)(2), and 67.307(b)(2).5[] On February 9, 2010, respondent stipulated to the following facts:
Exh A-3 at 1—2. The Administrator also stipulated to certain facts, including the fact that the tests performed on respondent's urine sample were to determine the presence of THCA, which is "the major metabolite found in urine after the use of marijuana." Id. at 2, ¶ 3. The Administrator also stipulated to the fact that the presence of the above-named metabolite is not evidence of current use of marijuana, or of current impairment. Id. at 2, ¶¶ 5—6. The Administrator further stipulated that, "[t]here is no evidence that [respondent] used marijuana or any other prohibited substance after November 11, 2009." Id. at 3, ¶ 7.
Based on the stipulated facts, the Administrator's counsel filed a motion for summary judgment, to which respondent filed a reply and a counter-motion for summary judgment. The law judge, however, ordered a hearing, which both parties agreed would consist only of legal arguments, as no factual issues were in dispute.6[] The Administrator's counsel argued that the revocation of respondent's mechanic certificate is based upon the discovery of a prohibited drug in respondent's system, "as evidenced by a drug test which confirmed the presence of marijuana metabolites." Tr. at 29. The Administrator's counsel asserted that "marijuana metabolites are a prohibited drug in accordance with the [C.F.R.]" Tr. at 30. The Administrator's counsel stated that the Administrator derives this conclusion from the combination of regulations that the Administrator's counsel submitted into the record; in particular, the Administrator's counsel contended that § 120.33(b) refers to a "prohibited drug, as defined in this part, " and that § 120.7(m) states as follows: "Prohibited drug means marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines, as specified in 49 CFR 40.85." Exhs. A-6 A-7. Section 40.85, in turn, provides as follows:
Exh A-8. The Administrator's counsel also described 49 C.F.R. § 40.87(a), which specifies the cutoff concentrations and lists specific metabolites for which the Administrator tests. Exh. A-9 (listing the cutoff level in the confirmation test at 15 ng/mL). Both parties agreed that the level of marijuana metabolites in respondent's urine was 35 ng/mL.
The Administrator's counsel asserted that § 120.33(b) imposes a strict liability standard, because the regulation does not expressly require a showing of impairment, but only requires a positive drug test result. Based on this assertion, the Administrator's counsel contended that the instant case was distinguishable from Administrator v. Holland, NTSB Order No. EA-5472 (2009), in which the Board recently determined that the Administrator did not prove that the respondent in that case had violated 14 C.F.R. § 91.17(a)(3).7[] The Administrator's counsel stated that § 120.33(b) sets forth a strict liability standard because the Administrator believes that people who perform safety-sensitive functions should never use prohibited substances. Tr. at 41. The Administrator's counsel argued that § 120.33(b) does not allow for any discretion with regard to revoking one's certificate; in particular, he asserted that, if someone has a prohibited drug in his or her system, as defined by § 40.85, then the Administrator must revoke his or her certificate. With regard to whether marijuana metabolites fall within the category of "prohibited drug" under the regulation at issue, the Administrator's counsel engaged in the following colloquy with the law judge:
Tr. at 43—44. The Administrator's counsel concluded that respondent violated § 120.33(b), and that revocation of his mechanic certificate was therefore appropriate.
In rebuttal, respondent's counsel argued that the Administrator did not fulfill the burden of proof on the violation of § 120.33(b). Respondent's attorney first asserted that the Administrator did not provide evidence that respondent had a prohibited substance in his system at the time that respondent performed the safety-sensitive function of working on the Bell helicopter on November 18, 2009, as charged in the complaint. In particular, respondent's counsel stated that the Administrator only proved that, on November 25, 2009, respondent's urine contained 35 ng/mL of marijuana metabolite, but that the Administrator did not establish what level of the metabolite was in respondent's system on November 18, 2009, or that respondent would have failed the confirmation test on November 18, 2009. The Administrator's counsel objected to this argument, based on the stipulation to which the parties agreed; in particular, the Administrator's attorney stated that the medical review officer's verification of the positive test result constituted prima facie evidence that respondent violated § 120.33(b), and that respondent did not provide evidence that the level of metabolite in one's system could increase or decrease on its own. In a discussion with respondent's counsel concerning whether the Administrator proved that the level of marijuana metabolite in respondent's body at the time he performed the maintenance at issue exceeded the cutoff, the law judge stated: Tr. at 68.
Respondent's counsel also asserted the alternative argument that marijuana metabolite is not a "prohibited substance" under the Federal Aviation Regulations (FAR). Respondent's counsel stated that § 120.7(m) does not say "marijuana metabolite, " but instead categorizes "marijuana" as a "prohibited drug." Respondent's counsel disagreed with the Administrator's assertion that § 40.85 includes marijuana metabolite as a prohibited drug, and stated that § 40.85 merely sets forth the testing protocol for laboratories. Respondent's counsel read portions of the Holland opinion into the record, and stated that Holland stands for the notion that § 40.85 only addresses drugs targeted for testing protocols, and does not list prohibited drugs; responden...
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