Meik v. National Transp. Safety Bd.
| Decision Date | 14 July 1983 |
| Docket Number | No. 82-7175,82-7175 |
| Citation | 710 F.2d 584 |
| Parties | David S. MEIK, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD and Federal Aviation Administration, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Darlene M. Freeman, Washington, D.C., for respondents.
William A. Helsell, Karen Vanderlaan, Seattle, Wash., for petitioner.
Appeal from an Order of the National Transportation Safety Board.
Before GOODWIN, ALARCON and FERGUSON, Circuit Judges.
David S. Meik flew as an United Airlines pilot continuously from 1964 through 1978. In June 1978, at the age of thirty-five, he suffered a moderate cerebrovascular accident (CVA), i.e., stroke. He was hospitalized for a week, during which time he experienced difficulty with speaking and with motor coordination in his right hand. However by the time he was released, he could speak normally and his hand was much better. He has experienced no recurrence since and has no present disability of speech or hand.
Generally, a stroke results from a blockage in a blood vessel in the brain. In Meik's case, it was caused by an embolus that blocked the middle cerebral artery. The source of the embolus, which is defined as a mass of blood or other matter circulating in the blood stream, has never been determined.
In November 1979, Meik applied for a first-class airman medical certificate in order to resume his career. On September 19, 1980, the Federal Air Surgeon issued a final denial of the application. Meik sought and received a hearing before an Administrative Law Judge, who upheld the denial.
Meik then appealed to the National Transportation Safety Board (NTSB). The NTSB supplemented the record with new evidence arising out of additional medical testing and modified the findings of the ALJ, but also affirmed the denial, basing its decision on the fact that the cause of Meik's CVA has remained undetermined and, as a result, untreated. Pursuant to 49 U.S.C. Sec. 1486, Meik now petitions for review by this court, contending that (1) the NTSB failed to follow the applicable regulation; and (2) a review of the substantial evidence does not support the Board's denial of the certificate. We do not find Meik's arguments persuasive and affirm the NTSB.
Federal regulations define two general categories of conditions which, if experienced by the applicant, are cause for disqualification. The first category lists specific disqualifying conditions. A CVA of the type suffered by Meik is not listed. The second category, at issue here, requires a case-by-case determination of the health of the applicant.
The regulation allows denial of a first-class airman medical certificate if the Federal Air Surgeon finds that the condition,
(a) Makes the applicant unable to safely perform the duties or exercise the privileges of the airman certificate that he holds or for which he is applying; or
(b) May reasonably be expected, within 2 years after the finding, to make him unable to perform those duties or exercise those privileges.
14 C.F.R. Sec. 67.13(d)(2)(ii) (emphasis added). Meik asserts that he has no condition which makes him presently unable to fly safely and that he should not have been denied the certificate under the second prong of the test because the agency has made no showing that he may reasonably be expected to suffer a second CVA within two years. A certificate cannot be denied by reliance on "mere suggested possibilities." See Petition of Stetson, EA-751 2 N.T.S.B. 1687, 1689 (1975). Furthermore, it cannot be denied even if the applicant is at a "somewhat greater risk ... as compared to the general population." See Petition of Moseby, EA-776, 2 N.T.S.B. 1824, 1826 (1975).
Meik argues that the decision of the ALJ was based upon the mere possibility that the pilot might suffer another CVA within his lifetime and not within the two-year limitation specifically set out by the regulation. On review, the NTSB modified some of the findings of the ALJ but upheld his denial of the certificate on the grounds that the cause of the CVA has not been identified and therefore remains untreated, thereby increasing the risk of a second CVA within the two-year limitation set out by the regulation.
Meik also argues that the evidence presented did not support the decisions reached by either the ALJ or the NTSB. At the hearing, Meik introduced four doctors who testified to the risk of recurrence of a CVA. Their testimony treated Meik's condition from hematological, neurological and cardiovascular points of view. The doctors confined themselves to their own specialized areas, and each stated that Meik appeared to be in good health. They all produced theories for the cause...
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