Pasternack v. National Transp. Safety Bd., 09-1139.
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
| Writing for the Court | Kavanaugh |
| Citation | 596 F.3d 836 |
| Parties | Fred Leroy PASTERNACK, Petitioner v. NATIONAL TRANSPORTATION SAFETY BOARD and Federal Aviation Administration, Respondents. |
| Docket Number | No. 09-1139.,09-1139. |
| Decision Date | 26 February 2010 |
v.
NATIONAL TRANSPORTATION SAFETY BOARD and Federal Aviation Administration, Respondents.
On Petition for Review of an Order of the National Transportation Safety Board.
Kathleen A. Yodice argued the cause and filed the briefs for petitioner.
James F. Conneely, Attorney, Federal Aviation Administration, argued the cause and filed the brief for respondent. Susan Caron, Attorney, entered an appearance.
[596 F.3d 837]
Before: GINSBURG, BROWN, and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge KAVANAUGH.
KAVANAUGH, Circuit Judge:
The Federal Aviation Administration revoked Fred Pasternack's airman certificates on the ground that Pasternack refused to take a mandatory drug test. The National Transportation Safety Board upheld the revocation order. Because a key finding on which the Board relied was not supported by substantial evidence, we grant the petition, vacate the Board's decision, and remand for further proceedings consistent with this opinion.
Dr. Fred Pasternack was a part-time pilot with Northeastern Aviation. In June 2007, Northeastern notified him that he had been randomly selected for drug testing; such random drug testing was required by Department of Transportation regulations. Pasternack reported to a LabCorp collection site but was unable to provide a sufficient quantity of urine for the test. This is not an uncommon occurrence, and for such situations, the Department has adopted "shy bladder" procedures. See 49 C.F.R. § 40.193. Under the regulations, Pasternack was required to remain at the collection site for three hours or until he provided a sufficient specimen. See id. The collector, Theresa Montalvo, told Pasternack to remain in the waiting room until he could provide another specimen. Pasternack apparently had a scheduled business-related meeting and told Montalvo he needed to leave the collection site. He left and returned a few hours later, at which time he provided a sample that tested negative for drugs. Pasternack claimed to have left the collection site with Montalvo's acquiescence after spending several minutes in the waiting room. See Transcript of NTSB Hearing at 424-26, Adm'r v. Pasternack, Docket No. SE-18133 (July 30-31, 2008) (Hearing Tr.) (J.A. 281-83). Montalvo, however, testified that Pasternack "rushed out of the facility" while she was attempting to explain the collection procedures to him. Id. at 78 (J.A. 68). Although Montalvo herself apparently did not view Pasternack's departure as a refusal to take the test (given that she allowed him to take the test when he returned), a medical review officer concluded that Pasternack's failure to remain at the testing site meant that he had technically refused a drug test for purposes of the Department of Transportation regulation. Id. at 120 (J.A. 100); see 49 C.F.R. § 40.191(a)(2). The penalty for refusing to take a test is naturally harsh: The Federal Aviation Administration issued an emergency order revoking Pasternack's airline transport pilot and flight instructor certificate and his ground instructor certificate.
Pasternack appealed the FAA's order to the National Transportation Safety Board. The case was initially heard by an Administrative Law Judge, who affirmed the revocation order. The Board, in turn, affirmed the ALJ's decision. See Adm'r v. Pasternack, NTSB Order No. EA-5443 (Apr. 27, 2009) (J.A. 394).
As an initial matter, the Board observed that Pasternack's undisputed conduct — the fact he had "left the test site without providing an adequate urine sample and before the testing process had been completed" — qualified as a refusal under the plain language of § 40.191(a)(2). Id. at 11 (J.A. 404). The Board then considered Pasternack's "exculpatory justifications for his refusal," including his claim that no one told him leaving would constitute a refusal. Id. at 12 (J.A. 405). The Board rejected that claim, finding that the ALJ had made an "implicit ... credibility determination"
against Pasternack and that "the preponderance of the evidence ... demonstrates that [Pasternack]'s own behavior at LabCorp precluded the LabCorp test administrator from explaining ... that [Pasternack's] departure from the facility ... would constitute a refusal." Id.
Pasternack petitioned this Court for review of the Board's decision pursuant to 49 U.S.C. § 1153. He contends, among other things, that the Board erred in finding that his conduct amounted to a refusal of a drug test.1
We review NTSB decisions under the arbitrary and capricious standard and treat the...
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Pasternack v. Lab. Corp. of Am. Holdings
...the shy bladder procedure to plaintiff was not supported by substantial evidence (see Pasternack v. National Transp. Safety Bd., 596 F.3d 836 [D.C.Cir.2010] ). In September 2010, the NTSB remanded the case to the ALJ, directing that the ALJ make the necessary credibility findings concerning......
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Pasternack v. Lab. Corp. of Am. Holdings
...the shy bladder procedure to plaintiff was not supported by substantial evidence (see Pasternack v. National Transp. Safety Bd., 596 F.3d 836 [D.C.Cir.2010] ). In September 2010, the NTSB remanded the case to the ALJ, directing that the ALJ make the necessary credibility findings concerning......
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Huerta v. Ducote, No. 14–1023.
...For that reason, the Board's dismissal of Count 3 of the complaint is unsupported by substantial evidence. See Pasternack v. NTSB, 596 F.3d 836, 838–839 (D.C.Cir.2010) ; Van Dyke v. NTSB, 286 F.3d 594, 597–598 (D.C.Cir.2002).IVConclusionThe Board's interpretation and application of its stal......
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Nolen v. Pham, NTSB Order EA-5936
...prove an affirmative defense excuses his conduct). [131] 513 F. App'x. 1 (D.C. Cir. 2013). [132] Id. at 3-4; see also Pasternack v. NTSB, 596 F.3d 836, 839 (D.C. Cir. 2011). [133] Pasternack v. Huerta, supra n. 131, at 4. [134] Id. at 2. [135] In pointing out this fact, we do not intend to ......
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Pasternack v. Lab. Corp. of Am. Holdings
...the shy bladder procedure to plaintiff was not supported by substantial evidence (see Pasternack v. National Transp. Safety Bd., 596 F.3d 836 [D.C.Cir.2010] ). In September 2010, the NTSB remanded the case to the ALJ, directing that the ALJ make the necessary credibility findings concerning......
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Pasternack v. Lab. Corp. of Am. Holdings
...the shy bladder procedure to plaintiff was not supported by substantial evidence (see Pasternack v. National Transp. Safety Bd., 596 F.3d 836 [D.C.Cir.2010] ). In September 2010, the NTSB remanded the case to the ALJ, directing that the ALJ make the necessary credibility findings concerning......
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Nolen v. Pham, NTSB Order EA-5936
...prove an affirmative defense excuses his conduct). [131] 513 F. App'x. 1 (D.C. Cir. 2013). [132] Id. at 3-4; see also Pasternack v. NTSB, 596 F.3d 836, 839 (D.C. Cir. 2011). [133] Pasternack v. Huerta, supra n. 131, at 4. [134] Id. at 2. [135] In pointing out this fact, we do not intend to ......
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Pasternack v. Lab. Corp. of Am. Holdings, Docket No. 14–4101–cv.
...NTSB, holding that the NTSB's finding that Pasternack had "refused" to test was not supported by substantial evidence. Pasternack v. NTSB, 596 F.3d 836, 838 (D.C.Cir.2010). While it was undisputed that Montalvo did not advise Pasternack that he would be deemed a "refusal to test" if he left......