Nolen v. Steadman
| Decision Date | 06 May 2022 |
| Docket Number | NTSB Order EA-5925,SE-30507 |
| Parties | BILLY NOLEN Acting Administrator, Federal Aviation Administration, Complainant, v. DAVID B. STEADMAN, Respondent. |
| Court | Court of National Transportation Safety Board |
Respondent appeals the oral initial decision of Administrative Law Judge Alfonso J. Montafio, issued on February 14 2020.[1] By that decision, the law judge determined the Administrator proved respondent violated 14 C.F.R. § 120.37(b)[2] and ordered revocation of respondent's airline transport pilot certificate, first class medical certificate, and any other Part 61 airman certificates and airman medical certificates in accordance with 14 C.F.R. §§ 67.107(b)(2), 67.207(b)(2), and 67.307(b)(2).[3] Respondent timely appealed. For the reasons set forth below, we deny respondent's appeal and affirm the law judge's decision.
Respondent was employed by Alaska Airlines as a captain from 1996 to March 16, 2018. Alaska Airlines has a drug and alcohol program subject to the requirements of 14 C.F.R. Part 120 and 49 C.F.R. Part 40.[4] As a pilot, respondent was subject to the drug and alcohol testing under this program.[5] On March 16, 2018, respondent was scheduled to act as the pilot-in-command on Alaska Airlines Flight 674, a passenger-carrying flight from Seattle, Washington, to Denver, Colorado.[6] The same day, at approximately 5:15 a.m., respondent passed through the Seattle airport's Transportation Security Administration (TSA) checkpoint to report for duty.[7] As respondent was passing through the checkpoint, TSA agent Deborah Lennett screened respondent's hands for explosives.[8] She smelled alcohol on respondent's breath and reported it to her manager, who then reported it to Alaska Airlines' station supervisor, Nathan Krambule.[9] At approximately 5:45 a.m., Mr. Krambule and another Alaska Airlines supervisor, Andrey Akhremenko, approached respondent in the airport's Northern Satellite terminal.[10] After both, Mr. Krambule and Mr. Akhremenko, smelled alcohol on respondent's breath, Mr. Krambule made a reasonable suspicion determination requiring respondent to undergo a breath alcohol test.[11] Mr. Krambule and Mr. Akhremenko then escorted respondent to Alaska Airlines' crewmember room to wait for the arrival of the certified service agent and breath alcohol technician, Steve Pallagi.[12]
Mr. Pallagi was contracted by drug testing companies EMSI and Sierra Screening to conduct respondent's breath alcohol test on March 16, 2018.[13] After Mr. Pallagi's arrival at the airport at approximately 7:00 a.m., an Alaska Airlines employee escorted him to the company offices on the airport's mezzanine level to administer respondent's breath alcohol test.[14] At 7:22 a.m., as Mr. Pallagi was performing a calibration check on his Phoenix 6.0 evidential breath testing device, Mr. Krambule escorted respondent into the room.[15] At 7:28 a.m., respondent's initial breath alcohol test showed a breath alcohol concentration of 0.086.[16]Because the result was positive, a confirmation test was required after a 15-minute waiting period.[17] At 7:44 a.m., respondent's confirmation breath alcohol test showed a breath alcohol concentration of 0.080.[18] At 7:45 a.m., Mr. Pallagi conducted another calibration check of the Phoenix 6.0.[19] Shortly after the breath alcohol test concluded, John Ladner, Alaska Airlines' designated employer representative, arrived to the testing room and directed respondent to make a written statement about his recent alcohol consumption.[20] Respondent wrote that on the previous night of March 15, 2018, he "had two drinks at lunch with [his] girlfriend, had a drink while cooking dinner and a glass of wine with dinner, no alcohol past 6:10 p.m."[21]
During the test, Mr. Pallagi filled out the Department of Transportation (DOT) alcohol testing form but failed to check off the 15-minute waiting period and failed to have respondent sign Step 4 of the form, indicating that a positive result was confirmed.[22] Later on March 16, 2018, Mr. Pallagi completed a certificate of correction identifying these errors.[23] On March 16, 2018, at 3:37 p.m., on advice of his Air Line Pilots Association (ALPA) representative, respondent obtained a blood alcohol test, which rendered a negative result.[24]
On March 16, 2018, Alaska Airlines reported respondent's positive breath alcohol test to the FAA.[25] On May 17, 2018, the Administrator issued an emergency order of revocation, revoking respondent's airman and medical certificates. The Administrator filed the emergency order of revocation as the complaint in this case on May 25, 2018. The complaint alleged respondent violated 14 C.F.R. § 120.37(b) by performing safety-sensitive functions on March 16, 2018, while having an alcohol concentration of 0.086 percent on a breath alcohol test and 0.080 percent on a confirmation breath alcohol test.[26] In the timely answer to complaint, respondent admitted that the test indicated the alcohol concentration values noted above but denied that the test was accurate or reliable.[27]
Respondent submitted medical records showing a 2015 diagnosis of gastroesophageal reflux disease (GERD), an April 2018 diagnosis of fatty liver disease, and a past history of benign prostatic hypertrophy (BPH).[28] Respondent argued that his GERD elevated his "mouth alcohol," resulting in the erroneous breath alcohol test results on March 16, 2018.[29] The Administrator submitted two studies showing that GERD had no effect on breath alcohol test results. A 1999 clinical trial examining the effects of severe GERD on breath alcohol test results in 10 individuals concluded that "the risk of alcohol erupting from the stomach into the mouth owing to gastric reflux and falsely increasing the result of an evidential breath-alcohol test is highly improbable."[30] A 2001 study of a young male with severe GERD and charged with driving under the influence of alcohol (DUI) found no evidence that mouth alcohol due to GERD had influenced any test results."[31] On December 11, 2018, respondent made a request for subpoena to be served on Mr. Pallagi for production of documents reflecting, in relevant part, copies of the breath alcohol tests performed by him between January 1, 2018, and June 1, 2018; an instrument log of breath alcohol tests performed on the Phoenix 6.0 device and dated from December 1, 2017, to June 16, 2018; and copies of all of Mr. Pallagi's certificates of correction during his employment for EMSI.[32] On May 6, 2019, respondent submitted an amended request for subpoena, demanding that the requested documents be issued to respondent's attorney within 20 days of the service of the subpoena. On May 8, 2019, the law judge issued the subpoena to Mr. Pallagi. On May 15, 2019, Mr. Pallagi filed a motion to quash the subpoena. In the motion, Mr. Pallagi indicated that he was unable to produce the above-noted documents without a court order without violating 49 C.F.R. Part 40 confidentiality rules.[33]
On October 8, 2019, respondent filed a motion to quash Mr. Pallagi's testimony and respondent's test results, contending, in relevant part, that Mr. Pallagi's motion to quash was frivolous and filed in bad faith.[34] On October 25, 2019, the law judge held a telephonic conference with the parties and Mr. Pallagi to discuss Mr. Pallagi's motion to quash the subpoena. On November 1, 2019, the law judge issued an order to Mr. Pallagi to produce the outstanding documents in a redacted form and provide an explanation for the documents he was unable to produce. On November 8, 2019, Mr. Pallagi produced to respondent all documents related to his March 16, 2018, breath alcohol test. Mr. Pallagi also produced to respondent redacted copies of breath alcohol tests dated from March 1, 2018, to June 16, 2018, and EMSI certificates of correction dated from March 1, 2018, to April 9, 2019. Mr. Pallagi explained that he did not keep a separate instrument log for the tests he performed using the Phoenix 6.0 device. Mr. Pallagi also explained that he could not provide the breath alcohol test results dated prior to March 1, 2018, because he had destroyed them in accordance with 49 C.F.R. Part 40 retention schedules.
Respondent also filed a December 17, 2018, motion for declaratory relief and legal memorandum, where he argued that Mr. Pallagi made multiple fatal errors on the alcohol testing form and that respondent was not given a blood test and had been tested with a nonportable breath alcohol testing unit in contravention of the State of Washington's laws.[35] On January 28, 2019, respondent filed a consolidated motion in limine for quashing of respondent's alcohol test, dismissal of complaint, and legal memorandum, arguing that the March 16, 2018, breath alcohol test was unduly delayed in violation of his due process rights.[36] Also on January 28, 2019, respondent filed a consolidated motion for leave/motion to compel discovery, contending that the Administrator had not responded to his multiple interrogatory requests.[37] The law judge did not rule on these motions before the hearing.
The law judge conducted a hearing on February 4-7, 2020. At the hearing, the Administrator called Lacey Jones, the manager of the special investigations branch in the FAA Drug Abatement Division; Ms. Lennett; Mr. Krambule; Mr. Akhremenko; Mr Pallagi; Courtney D. Scott, M.D., a certification physician for the Civil Aerospace Medical Institute (CAMI); and Russell J. Lewis, Ph.D., a supervisor of forensic sciences at CAM! Respondent testified on his own behalf and called the following witnesses: John J. Santoro, D.O., a gastroenterologist; Gregory T. Wright, a captain with Alaska...
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