Pham v. Nat'l Transp. Safety Bd. & Fed. Aviation Admin.

• Citation: 33 F.4th 576
• Decision Date: 10 May 2022
• Docket Number: 21-1062,C/w No. 21-1083
• Parties: Ydil W. PHAM, Petitioner v. NATIONAL TRANSPORTATION SAFETY BOARD and Federal Aviation Administration, Respondents
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

33 F.4th 576

Ydil W. PHAM, Petitioner
v.
NATIONAL TRANSPORTATION SAFETY BOARD and Federal Aviation Administration, Respondents

No. 21-1062
C/w No. 21-1083

United States Court of Appeals, District of Columbia Circuit.

Argued December 13, 2021
Decided May 10, 2022

Alan Armstrong argued the cause and filed the briefs for petitioner/cross-respondent.

Joshua M. Koppel, Attorney, U.S. Department of Justice, argued the cause for respondents/cross-petitioners. With him on the briefs were Brian M. Boynton, Acting Assistant Attorney General, Abby C. Wright, Attorney, Cynthia A. Dominik, Assistant Chief Counsel for Enforcement, Federal Aviation Administration, and Agnes M. Rodriguez and Casey Gardner, Attorneys.

Before: Srinivasan, Chief Judge, Rogers and Jackson^* , Circuit Judges.

Rogers, Circuit Judge:

Ydil Pham and the Federal Aviation Administration both petition for review of the National Transportation Safety Board's suspension of Pham's pilot and medical certificates for 180 days. Pham contends that the Board erred in concluding that he refused a drug test when he left the test center before providing the requisite amount of urine because (1) he was not told he could drink water (a "shy-bladder" warning), as required by regulation, (2) he was given permission to leave, and (3) his urine sample was unlawfully discarded. He also contends that the Board impermissibly applied a strict-liability standard. The FAA objects by cross-petition to the Board's decision to suspend rather than revoke Pham's certificates as the FAA ordered, contending that (1) the Board is obligated to defer to the FAA's guidance and interpretations of its regulations, (2) those regulations require revocation of medical certificates for at least 2 years after a refusal to test, and (3) the Board deviated from its precedent without explanation. For the following reasons, the court denies Pham's petition and grants the FAA's cross-petition.

I.

The FAA is authorized to issue "airman certificates," which permit individuals to engage in a range of activities related to aviation. 49 U.S.C. §§ 44702(a), 40102(a)(8), 44711(a). Pursuant to this authority, it issues six types of pilot certificates. 14 C.F.R. § 61.5(a). Among other requirements, pilots must be "physically able" to perform their duties, 49 U.S.C. § 44703(a), and must obtain a "medical certificate" certifying their physical fitness to pilot planes as measured against specific criteria, see 14 C.F.R. § 61.23 and pt. 67.

The FAA is also required to establish a program for "preemployment, reasonable suspicion, random, and post-accident testing of airmen ... for use of a controlled substance." 49 U.S.C. § 45102. FAA regulations require that each test subject provide at least 45 milliliters of urine for a drug test. 49 C.F.R. § 40.65(a). If the test subject fails to do so, the collector must

33 F.4th 579

follow "shy-bladder" procedures, under which the collector must discard the specimen and "[u]rge the [subject] to drink up to 40 ounces of fluid." Id. § 40.193(b). If the subject leaves the test center before the collection is completed, the departure is deemed a refusal to test. Id. § 40.191(a)(2).

Further, the FAA may revoke certificates if it "decides ... that safety in air commerce or air transportation and the public interest require that action." 49 U.S.C. § 44709(b)(1)(A). "Refusal ... to take a [required] drug or alcohol test ... is grounds for ... [s]uspension or revocation" of a pilot certificate, 14 C.F.R. § 120.11, and disqualifies the pilot from holding any of the three classes of medical certificate for two years from the refusal to test, id. §§ 67.107(b)(2), 67.207(b)(2), 67.307(b)(2). Adversely affected individuals may appeal an FAA order to the National Transportation Safety Board (hereinafter, the "Board"). 49 U.S.C. § 44709(d).

II.

In August 2020, Pham, an experienced airline pilot, interviewed for a job with Private Jets. As a condition of employment, he was required to take a pre-employment drug test. Upon arrival at the test center, the test collector, Lois West, explained the testing procedures, including that he would need to produce a urine sample. Pham began the testing procedures but did not provide the required 45-milliliter urine sample, see 49 C.F.R. § 40.65(a), and left the test center. West reported Pham's refusal to test to Private Jets’ drug testing manager, Cindy Boone, who, pursuant to FAA guidance, see FAA Drug and Alcohol Compliance Enforcement Inspector Handbook, FAA Order 9120.1D, at 43 (Aug. 9, 2018), notified the FAA that Pham had refused a drug test.

On November 5, 2020, the FAA issued an emergency order revoking Pham's airline transport pilot certificate and his airman medical certificates. Emergency Order of Revocation, FAA Case No. 2020 WA 910339 (Nov. 5, 2020) (hereinafter, the "Revocation Order"). The Revocation Order stated that Pham's failure to remain at the test center until the collection process was completed constituted, pursuant to 49 C.F.R. § 40.191(a)(2), a refusal to submit to a required drug test, Revocation Order at 2, and that Pham, therefore, "lack[ed] the qualifications necessary to hold [an airline transport pilot certificate] and any class of airman medical certificate," id. at 3. The revocations were made effective immediately, id. at 3, because Pham's "refusal to submit to FAA-required drug testing demonstrates that [he] ... lack[s] the degree of care, judgment, and responsibility required of the holder of a pilot certificate and any class of airman medical certificate," id. at 4. Pham appealed to the Board.

Before an administrative law judge ("ALJ") for the Board, West testified that Pham had provided an insufficient urine sample and had told her that he was unable to stay at the test center any longer. See NTSB Hearing Tr. (Nov. 23–24, 2020) at 19–20. West also testified that she informed Pham that leaving before the test collection process was completed would be considered a refusal to take a test. Id. at 20. West denied giving Pham permission to leave the test center and testified that she had told Pham that "he would have to get a whole new form from [his] job" after leaving because, once she indicated a refusal on his testing form, she could not use that form again. Id. at 21. Although West could not recall whether she informed Pham about the shy-bladder procedure, she noted that she was trained to do so. Id . at 20, 39. West further testified that after Pham left, she contacted Boone to notify

33 F.4th 580

her of Pham's failure to complete the test. Id. at 33–34. Boone's testimony confirmed that West told her that Pham left the test center before completing his drug test, although West had warned him that leaving would be considered a refusal. Id. at 61. Boone reported Pham to the FAA, she explained, because she is required to report any refusal of a drug test. Id. at 62–63.

Pham admitted in his testimony that the urine sample he produced was deemed insufficient, id. at 111, and claimed that when he asked West if he could go to lunch and come back to finish the test, she granted him permission to do so, stating that Private Jets could send a new application if Pham returned, id. at 112. Pham testified that West neither gave him shy-bladder instructions nor told him that leaving the test center would be deemed a refusal, claiming that he would not have left the center had he been so informed. Id. at 113–14.

The ALJ found that West's testimony was "very credible as to advising [Pham] that" leaving the test center before completing the testing process "was a refusal," id. at 158, noting that her testimony was corroborated by paperwork she had filled out the day the test began, id. at 157, Exh. A-2. By contrast, the ALJ found Pham's testimony was unpersuasive, because as an air transport pilot, Pham was held to a "higher standard" and should have known the relevant regulations. Id. at 158. The ALJ specifically found that Pham (1) had provided a urine sample that was "insufficient" in volume; (2) "was advised that [leaving the test center] constituted a refusal"; and (3) "was advised that, if he left, he would have to have another confirmation form when he returned." Id. at 159. Therefore, the ALJ concluded that the FAA had proven a violation of its drug-testing regulations and affirmed the FAA's revocation of Pham's certificates. Id. at 159–61.

Pham appealed the ALJ's initial decision to the Board. The Board deferred to the ALJ's credibility determinations, Opinion and Order, NTSB Order No. EA-5889, at 17–21 (Jan. 4, 2021) (hereinafter, the "NTSB Order"), and affirmed the ALJ's determination that Pham had refused a drug test, id. at 21–25. In response to Pham's argument that he did not receive a shy-bladder warning as 49 C.F.R. § 40.193(b) required, the Board observed that "West explained the most important part: leaving before providing an adequate sample constitutes a refusal." Id. at 25. The Board also rejected Pham's argument that the ALJ had improperly applied a strict-liability standard, finding that the ALJ "considered the witnesses’ testimonies, assessed the witnesses’ credibility,...