McHenry v. Bond

• Decision Date: 22 February 1982
• Docket Number: No. 80-5721,80-5721
• Citation: 668 F.2d 1185
• Parties: Clinton A. McHENRY, Petitioner, v. Langhorne M. BOND, Administrator, Federal Aviation Administration, and National Transportation Safety Board, Respondents.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1185

668 F.2d 1185

Clinton A. McHENRY, Petitioner, v. Langhorne M. BOND, Administrator, Federal Aviation Administration, and National Transportation Safety Board, Respondents.

No. 80-5721.

United States Court of Appeals Eleventh Circuit.

Feb. 22, 1982.

Sanders, Schnabel, Joseph & Powell, Robert D. Powell, Mark T. McDermott, Washington, D. C., for petitioner.

Daniel S. Kozma, Washington, D. C., for amicus curiae, Air Line Pilots Ass'n.

Thomas E. Moseley, Asst. U. S. Atty., Miami, Fla., for respondents.

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

Before MORGAN, HILL and KRAVITCH, Circuit Judges.

MORGAN, Circuit Judge:

Appellant challenges an order of the National Transportation Safety Board (NTSB) which denied him first-class airman medical certification in 1979. Jurisdiction is proper pursuant to 49 U.S.C. §§ 1486, 1903. The Air Line Pilots Association, International, has filed an amicus curiae brief in support of appellant's position. A full discussion of the facts and the administrative hearing is necessary to address the various claims.

I

Clinton McHenry has been a pilot for 39 years and has accumulated over 28,000 hours of flight time. For the last 23 years he has served as a captain for Eastern Airlines. In addition to flying as a commercial pilot, McHenry has participated in aerobatic contests and has established an international reputation as an aerobatic pilot. He has won more aerobatic contests than any other pilot in United States history.

On January 24, 1977, McHenry suffered a strange illness which resulted in the revocation of his airman medical certification. ¹ At 1:00 o'clock in the morning, while landing an Eastern passenger flight in Tampa, he experienced a severe pneumatic headache caused by the rapid decompression that accompanies aircraft descent. McHenry relinquished control of the plane to his co-pilot, Randall Gibson, who completed the landing. Once on the ground, McHenry again took control of the plane, navigated it to the ramp, and parked it. Thereafter, he began to experience a period of amnesia and confusion. Gibson took him to a hospital where the amnesia continued for several hours. A cardiologist and a neurologist evaluated McHenry at the hospital and conducted various tests, including an isotope scan of the brain, an electrocardiogram and an electroencephalogram, all of which produced normal results. McHenry also gave the doctors a verbal medical history which included descriptions of three similar past experiences. The next day McHenry was released from the Tampa hospital and returned home to Miami where he was admitted to another hospital for further examination under the supervision of Dr. Ray Lopez, a neurologist. McHenry gave Dr. Lopez the same medical history and again described the three similar past experiences. After additional extensive testing and evaluation, Dr. Lopez rendered a final diagnosis of Transient Global Amnesia (TGA) and recommended to Eastern that McHenry be returned to full flying status in March of 1977. However, the Federal Aviation Administration (FAA) denied appellant's application for recertification the following September. McHenry received a final denial of first-class airman medical certification from the FAA in October of 1978. The Federal Aviation Administrator concluded that McHenry had experienced a "disturbance of consciousness without satisfactory explanation of the cause" as contemplated by 14 C.F.R. § 67.13(d)(2)(i)(b ), and therefore, a denial of medical certification was appropriate. ² McHenry then filed a petition for review with the NTSB. The case was referred to an administrative law judge who commenced evidentiary hearings on the matter in February of 1979.

During the proceedings before the administrative law judge, McHenry argued that he had experienced an isolated episode of TGA which constitutes a satisfactory medical explanation within the meaning of 14 C.F.R. § 67.13(d)(2) (i)(b ). The Administrator responded that McHenry had experienced a total of four disturbances of conciousness, including the three described by McHenry to his treating physicians, and therefore the episode was not an isolated manifestation of TGA. The Administrator argued alternatively that even if McHenry's illness of January 24, 1977, was an isolated episode of TGA, a diagnosis of TGA does not provide a satisfactory medical explanation within the meaning of the regulations.

Appellant presented numerous experts and other witnesses at the hearing. Dr. Lopez, McHenry's treating physician in Miami, testified first. Dr. Lopez is a Board-certified neurologist with 15 years experience. He described TGA as a widely recognized but rare syndrome, first documented in 1957, which causes the victim to suffer total amnesia for a period of several hours. After the amnesia has ended, Dr. Lopez explained, the victim is left as before but with no memory of events during the attack. The episode leaves the victim with no damage or impairment that can be detected by modern medical science. Although the exact cause or triggering mechanism of the syndrome is unknown, recurrences are rare according to Dr. Lopez. He has treated between 25 and 30 patients with a TGA diagnosis. It is Dr. Lopez's opinion that McHenry experienced an isolated episode of TGA on January 24, 1977. His opinion is based on his own experiences with TGA victims, the remarkable similarity between McHenry's symptoms and classic cases of TGA as described in literature, and the failure of scores of medical tests to produce any other explanation. Dr. Lopez was also questioned about the reference to three previous amnesic incidents in the medical history given to him by McHenry and used as evidence at the hearing. He explained that McHenry was very anxious to aid the doctors with any relevant information. Accordingly, McHenry related three episodes where he had forgotten something. The first occurred in 1964 and involved McHenry forgetting the address of a house while en route to the house through an unfamiliar neighborhood. The incident bothered McHenry and he returned home to his wife and asked her to question him about various matters in order to test his memory. He answered all of her questions perfectly. The second incident occurred just before an aerobatic competition in 1971. After drinking several cups of coffee, which is unusual for McHenry, he suddenly realized that he was unsure of the names of several people around him who were casual acquaintances. He then asked his son to quiz him in the same fashion that he had asked his wife several years earlier. He correctly answered all of the questions, but still decided not to fly in the competition. Finally, the third episode occurred in 1975 and involved McHenry forgetting the maiden name of a recently divorced woman. Dr. Lopez interprets all three of these incidents as medically insignificant normal losses of memory which are common to everyone.

The next witness on behalf of appellant was Dr. Irving Fosberg, a psychologist who at one time specialized in aviation psychology. Dr. Fosberg has repeatedly examined McHenry and administered over a dozen psychological tests. Each of the tests produced normal results. Dr. Fosberg described McHenry as a zealously precise person, a perfectionist who prides himself on his memory. In his opinion, McHenry's first three episodes of memory loss were just that, a temporarily forgotten name or address, while the later episode on January 24, 1977, was something more, an actual disturbance of consciousness. Dr. Fosberg testified that McHenry thought the three earlier experiences were similar to the later episode only because they all involved a failure of his prized memory.

Dr. Emil Taxay, a Board-certified internist specializing in aviation medicine, also testified on behalf of McHenry. Dr. Taxay estimated that he has examined several thousand pilots during his career. He described McHenry as a perfectionist who overemphasized the significance of the three earlier losses of memory. He also concurred in the diagnosis of TGA for McHenry's amnesic episode in January of 1977. It is his opinion that McHenry is medically competent to resume flying as a commercial pilot.

A number of other persons, including McHenry's wife and son, testified as eyewitnesses with respect to the nature and extent of the three earlier episodes of memory loss. Each person described the episodes as mere losses of memory with which everyone is familiar.

The last witness to appear for McHenry was Dr. Charles Fisher, a professor of neurology at Harvard University. Dr. Fisher credits himself with being one of the first doctors to recognize TGA. He has treated over 75 patients with a diagnosis of TGA, and has published numerous articles and lectured internationally on the subject. He examined McHenry several times in 1977 and 1978. It is his opinion that McHenry's three earlier memory losses were medically insignificant events. He concurs in a diagnosis of TGA for the final episode in January of 1977. The underlying cause of TGA is still unknown according to Dr. Fisher, however he believes that severe pain from a pneumatic headache may have acted as a triggering mechanism in McHenry's case. He stated that TGA itself is not uncommon, although recurrences of TGA are extremely rare. He has seen one recurrence in the dozens of TGA victims he has treated, and this recurrence took place ten years after the initial episode. He considers McHenry to be in excellent health.

The only witness on behalf of the Administrator was Dr. Harold Stevens, a Board-certified neurologist. Dr. Stevens has never examined McHenry but has reviewed all of the relevant medical records and was present throughout the hearings. He believes that McHenry has experienced four disturbances of consciousness. He stated that McHenry's perfectionist character would cause him to relate an accurate medical history to a physician, and thus,...