Erwin v. Fed. Aviation Admin.
| Decision Date | 14 January 2022 |
| Docket Number | No. 20-1443,20-1443 |
| Citation | 23 F.4th 999 |
| Parties | Charles ERWIN, Petitioner v. FEDERAL AVIATION ADMINISTRATION, Respondent |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Joshua D. Burns, argued the cause for petitioner. On the briefs was D. Michael McBride III.
Casey E. Gardner, Attorney, Federal Aviation Administration, argued the cause and filed the brief for respondent.
Before: Henderson, Tatel and Wilkins, Circuit Judges.
When Charles Erwin, a commercial airline pilot with a diagnosed alcohol dependence, tested positive for alcohol, the Federal Aviation Administration (FAA) withdrew his medical certification required for flight. Erwin, whose test came less than a day after consuming food prepared in beer, requested reconsideration of the FAA's decision with documentation to demonstrate that the positive test was due to unknowing exposure to alcohol. Standing firm, the FAA issued a short order denying Erwin's request but failing to explain adequately its denial. Accordingly, we remand to the FAA for a more complete explanation of its decision. See Friedman v. FAA , 841 F.3d 537, 544–45 (D.C. Cir. 2016) ( Friedman I ).
The Congress has directed the FAA to "promote safe flight of civil aircraft" by promulgating regulations, including those "necessary for safety in air commerce." 49 U.S.C. § 44701(a), (a)(5). Overseeing pilot certification is an important part of the FAA's safety mandate. See id . § 44702. The FAA fulfills its safety mandate by requiring that, in addition to a pilot certificate, see id. § 44703(a), a commercial pilot hold a medical certificate issued under 14 C.F.R. part 67, 14 C.F.R. § 61.3(c)(1). The requirements for medical-certificate eligibility vary based on the class of certificate sought. 14 C.F.R. §§ 61.23(a), 67.101 – .115 (first-class certificate), 67.201–.215 (second-class certificate), 67.301–.315 (third-class certificate). A commercial airline pilot may exercise certain privileges—for example, pilot-in-command privileges—only if he holds a first-class medical certificate. Id. § 61.23(a)(1). For a first-class certificate, a pilot must meet a host of medical standards, including, inter alia , vision, physical, mental and cardiovascular standards. See id. §§ 67.101 – .115. If a pilot meets all of the medical standards, he "is entitled to" an unrestricted medical certificate. Id . § 67.3. To meet the mental standards for an unrestricted medical certificate, a commercial airline pilot must not have an "established medical history or clinical diagnosis of ... [s]ubstance dependence." Id. § 67.107(a)(4). A codified exception to this prohibition allows a pilot with a diagnosed substance dependence to be eligible for an unrestricted medical certificate if "there is established clinical evidence, satisfactory to the Federal Air Surgeon, of recovery, including sustained total abstinence from the substance(s) for not less than the preceding 2 years."1 Id .
If a pilot with a diagnosed substance dependence fails to meet the "clinical evidence" test, the pilot must operate under a "Special Issuance of a Medical Certificate" (special issuance authorization). Id. § 67.401(a). The Federal Air Surgeon has discretion to grant a special issuance authorization and may do so if the pilot shows "to the satisfaction of the Federal Air Surgeon" that he can perform his duties "without endangering public safety during the period in which the [a]uthorization would be in force." Id. The Federal Air Surgeon may "[c]ondition the granting of a new [a]uthorization on the results of subsequent medical tests, examinations, or evaluations," id. § 67.401(d)(2), and may "[l]imit the duration of an [a]uthorization," id § 67.401(d)(1). When the authorization expires, the pilot must "again show to the satisfaction of the Federal Air Surgeon" that he can perform his duties "without endangering public safety during the period in which the [a]uthorization would be in force." Id. § 67.401(a).
While a pilot holds a special issuance authorization, the Federal Air Surgeon retains discretion to withdraw it, see id. § 67.401(f), and may exercise that discretion if, inter alia , "[t]here is [an] adverse change in the holder's medical condition," or "[t]he holder fails to comply with a statement of functional limitations or operational limitations issued as a condition of certification," id. § 67.401(f)(1), (2). Within sixty days after service of the withdrawal letter, the pilot may request reconsideration by the Federal Air Surgeon and may file "supporting medical evidence" with the request. Id. § 67.401(i)(2). The Federal Air Surgeon's decision on the reconsideration request is a final agency order and issues within 60 days of the request. Id. § 67.401(i)(3).
The airlines and the FAA have developed a cooperative program, the Human Intervention and Motivation Study (HIMS) program, to "coordinate[ ] the identification, treatment and return to" the cockpit of a pilot with a substance dependence.2 Participation in the HIMS program is often a condition of a special issuance authorization. A HIMS Aviation Medical Examiner (HIMS AME) is trained to oversee pilots who operate under special issuance authorizations and follows strict FAA reporting requirements. See FAA, Guide for Aviation Medical Examiners 421–29 (2021) (AME Guide ). In September 2020, the FAA accepted NTSB Safety Recommendation A-07-43 and created the HIMS Step Down Plan (Plan).3 Memorandum from Penny M. Giovanetti, D.O. Director, Med. Specialties Div., AAM-200 to AAM-200, AMCD, Reg'l Flight Surgeons 1 (Sept. 8, 2020) (hereinafter HIMS Step Down Plan Memorandum). The Plan creates tiers through which a pilot progresses based on his recovery, effective on the date the FAA issues the special issuance authorization. See AME Guide at 447. The FAA, not the pilot's HIMS AME, retains the final authority on when a pilot progresses through the tiers. Id. at 448. As he progresses, the pilot is subject to less onerous monitoring requirements. Id. ; infra at 1005–06. For example, by moving from the "Advanced Phase-3" to the "Maintenance Phase-4," the pilot no longer must attend a weekly peer addiction support group or undergo random alcohol or drug testing. AME Guide at 447.
Charles Erwin (Erwin) is a commercial airline pilot who began his flying career over a decade ago, operating under an unrestricted first-class medical certificate. [Redacted] Upon completion of an inpatient treatment program, Erwin entered the HIMS program to obtain a special issuance authorization because his substance dependence diagnosis and insufficient clinical evidence of the required two-year abstinence disqualified him from operating under an unrestricted medical certificate. Based on his treatment records, his post-treatment psychological and psychiatric testing conducted in March 2017 and the recommendations of both his HIMS AME and an FAA psychiatric consultant, Dr. Alan Sager, the FAA granted Erwin his first special issuance authorization (Authorization) on May 17, 2017. Unsealed Joint Appendix (J.A.) 68–71. The Authorization contained monitoring conditions, including random alcohol testing at least fourteen times per year, biannual evaluations by Erwin's HIMS AME, annual psychiatric evaluations, aftercare counseling and reporting requirements. J.A. 70. Crucially, the Authorization was "contingent upon total abstinence from alcohol." J.A. 69 (emphasis omitted). It was scheduled to expire on May 31, 2020.
On December 13, 2017, Erwin ate a lunch of pulled pork at a Franklin, Tennessee restaurant. The menu did not note that the pork was prepared in beer. Erwin took some of the meal home and ate the leftovers that night. The next morning, Erwin submitted to a random alcohol test. Quest Diagnostic Incorporated Forensic Toxicology tested Erwin's urine for ethyl glucuronide (EtG) and ethyl sulfate (EtS) biomarkers and the test determined that Erwin's EtG level was 144 ng/mL and his EtS level was 157 ng/mL—both over the threshold set by Delta. On December 28, 2017, one day after learning of the positive test, Erwin voluntarily took additional tests, specifically tests for phosphatidyl ethanol (PEth) in his blood and EtG in his hair and nails. Those tests came back negative.
Once the FAA learned of the positive test, it withdrew Erwin's Authorization on January 9, 2018. Delta then gave Erwin two options: (1) sign a "last chance contract" and enter treatment again or (2) face termination. Erwin once again entered inpatient treatment and signed the new employment contract, continuing to insist that he had maintained his sobriety since November 21, 2016.
On March 9, 2018, pursuant to 14 C.F.R. § 67.401(i), Erwin requested the Federal Air Surgeon to review the withdrawal, maintaining that he had tested positive due only to inadvertently consuming food cooked in beer. With his reconsideration request, Erwin submitted numerous exhibits and a report from a forensic toxicologist, Dr. Thomas Kupiec, to support his claim. The exhibits included, inter alia , evidence that Erwin ordered pulled pork at the restaurant, J.A. 191–92; an email from the restaurant stating that Erwin's dish was, "in fact, cooked with beer," even though the menu did not mention the beer, J.A. 193–94; the negative results of Erwin's follow-up tests from late December 2017, Sealed Joint Appendix (S.A.) 224–26; a 2012 Substance Abuse and Mental Health Services Administration (SAMHSA) Advisory on biomarkers, J.A. 202–09; a 2005 Memo from the Alabama State Board of Medical Examiners cautioning against using solely a positive urine EtG test to take disciplinary action against an employee, J.A. 220–21; and a study recommending use of PEth tests after a positive EtS or EtG test, J.A. 227–31. Kupiec's report discussed the drawbacks of using EtS/EtG tests to differentiate...
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