William King v. NTSB FAA ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-3798
___________
William K. King, *
*
Petitioner, *
*
v. * On Petition for Review of an
* Order of the National
National Transportation Safety * Transportation Safety Board.
Board; Marion C. Blakey, *
Administrator, Federal Aviation *
Administration, *
*
Respondents. *
___________
Submitted: November 17, 2003
Filed: April 1, 2004
___________
Before MURPHY, LAY, and FAGG, Circuit Judges.
___________
MURPHY, Circuit Judge.
Petitioner William King, an aircraft mechanic for Northwest Airlines, was
randomly selected for a drug test and failed to provide a urine sample. The
Administrator of the Federal Aviation Administration (FAA)1 issued an emergency
order revoking King's mechanic certificate, which was served on King and filed with
1
For ease of reference we generally refer to the FAA even though the
Administrator acts as its representative.
the National Transportation Safety Board to initiate proceedings for permanent
revocation. King filed an answer and appealed the revocation order to the Board.
After a hearing, an administrative law judge (ALJ) ordered that the revocation order
be dismissed. The FAA appealed, and the Board reinstated the revocation. King now
petitions this court for review of the Board's order.
I.
A.
The federal agency respondents to King's petition administer safety regulations
governing the aviation industry. The FAA is the primary administrative agency
involved in aviation safety. It promulgates federal aviation regulations in accordance
with the Administrative Procedure Act and enforces those regulations. The Board is
an independent agency which also has responsibilities for aviation safety, including
investigating accidents, making safety recommendations to the Secretary of
Transportation, and reviewing FAA enforcement orders. See 49 U.S.C. §§ 1131,
1133 (2004). It is the FAA which establishes and enforces certificate regulations, and
the Board decides appeals from FAA orders.
The statutory mandate of the FAA includes "assigning, maintaining, and
enhancing safety and security as the highest priorities in air commerce." 49 U.S.C.
§ 40101(d) (2004). In carrying out that mandate the FAA has authority to promulgate
legislative rules that carry the force of law, see Joseph v. United States Civil Serv.
Comm'n, 554 F.2d 1140, 1154 n.26 (D.C. Cir. 1977), and to interpret and explain
existing rules and regulations. See 5 U.S.C. §§ 552(a)(1)(D) and 553(b)(3)(A)
(2004). In 1988 the FAA promulgated a rule initiating antidrug programs, including
drug testing, for aviation personnel in safety sensitive positions. The FAA certifies
aircraft mechanics, and it pursues enforcement actions related to certificates when the
Administrator determines that air transportation safety and the public interest require
action. See 49 C.F.R. § 13.19(b) (2004).
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The Board decides appeals from FAA certificate actions and serves a function
similar to that of a reviewing court. See Hinson v. NTSB, 57 F.3d 1144, 1147 n.1
(D.C. Cir. 1995). The Board's Rules of Practice in Air Safety Proceedings govern
these appeals. See 49 C.F.R. § 821.1-.64 (2004). An ALJ initially hears the matter
and then issues a decision affirming, amending, modifying, or reversing the FAA
order. See 49 U.S.C. § 44709(d)(1) (2004). A party may appeal the ALJ's decision
to the Board, which can make new findings and issue new orders, affirm or reverse
the decision, or remand the case. See 49 C.F.R. § 821.49(b) (2004). A party
dissatisfied with the Board's decision may petition for review by a federal court of
appeals. See 49 U.S.C. § 44709(f) (2004). The Board is not a party in interest in
federal court proceedings and does not typically participate in them. See 49 C.F.R.
§ 821.64(a) (2004).
B.
Prior to May 2002, William King had worked as a Northwest Airlines aircraft
mechanic for fourteen years. He held FAA Mechanic Certificate No. 267713773 and
had never been disciplined, involved in an aviation incident, or tested positive for
drugs. At 3:30 p.m. on May 16, 2002, he was notified of his random selection for a
drug test that day.
There is no dispute that King arrived at the testing site on time at 4:45 p.m. He
talked with a union representative who was already there and completed preliminary
paperwork with the collector, Manuel Ortiz. Ortiz is a breath alcohol technician and
drug screener for Consolidated Medical Services in Bloomington, Minnesota, who
had at that time conducted over one thousand drug tests. Ortiz verified King's
identity, explained the basic collection procedures, and directed King to empty his
pockets to ensure that nothing was present that could adulterate a specimen. Ortiz
then completed the custody and control form, instructed King to wash and dry his
hands prior to providing a urine specimen, opened the collection kit, and secured the
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testing site. The collector statement prepared by Ortiz stated that King's collection
process was started without delay.
The parties dispute the time at which King made his first attempt to provide a
specimen. That time is significant because an individual is given three hours to
provide a specimen, measured from the time of an initial unsuccessful attempt.
King's answer to the FAA's complaint contained an admission that his first attempt
to urinate occurred at 4:50 p.m. Since his final failed attempt occurred at 7:52 p.m.,
his admission established that he had been given a full three hours for the test. King
was allowed to amend his answer at the hearing before the ALJ, however, and he
testified there that his first failed attempt occurred between 5:15 and 5:20 p.m. This
testimony conflicted with the collector statement and Ortiz's testimony, both of which
stated that his first attempt was at 4:50 p.m.
After King returned without a specimen, Ortiz told him to drink water and
pointed out a water fountain. When King failed on his second attempt at about 6:10
p.m., Ortiz again urged him to drink water but the parties dispute whether he
mentioned 40 ounces. Ortiz testified that he urged King to drink up to 40 ounces of
water, but King testified that he did not; the ALJ found King's testimony credible.
There is no dispute that King had unimpeded access to the fountain, and he testified
that he used it four or five times and also consumed a 12 ounce soda, for his estimated
total consumption of 20 to 27 ounces. King's further attempts to provide a urine
specimen at 6:45 p.m. and at 7:52 p.m. were unsuccessful. Ortiz calculated that King
had had a full three hours for the test and terminated the collection process at this
point.
A representative of the Aircraft Mechanics Fraternal Association (AMFA) was
present throughout the entire process: Paul Olson was there when King arrived, and
Joseph Wagner relieved him after King's first failed attempt. Neither representative
raised any challenge to the collection process, and both later testified at the hearing.
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Olson, who had been present at hundreds of drug tests, testified "I didn't see anything
wrong." Wagner testified that Ortiz was "the most intelligent of the testers that I have
seen" but that he had not heard him advise King to drink 40 ounces. Wagner himself
urged King to drink after his second unsuccessful attempt and later "urged him to
drink a lot of water because the clock was ticking." At 6:45 p.m. Wagner told King
to "drink water just to the point of being sick."
Just after 8 p.m. Ortiz called Timothy Bishop, Northwest's Drug and Alcohol
Program Manager and Designated Employer Representative, to report on the test.
Bishop questioned Ortiz about whether King had been provided access to water,
whether he had been given three hours to provide a urine specimen, and whether he
had been told that he could drink up to 40 ounces of fluid. Bishop testified that Ortiz
had answered affirmatively. Bishop also testified that the drug testing site had
undergone an FAA inspection in March 2002 and that he had confirmed with Ortiz
that the regulations and Northwest Airlines policy statement were still posted at the
collection site. Then Bishop spoke directly with King to confirm that he had not
provided a sample. Then he asked King, "Are you sure you don't have to go?" King
said "no," and Bishop told him that a medical evaluation would therefore be required
to determine whether there was a medical reason for his failure to provide a specimen.
He also explained that failure to provide a specimen could be deemed a refusal to test
and result in King's discharge.
On the following day King reported for a "shy bladder" physical examination
which includes a medical history, a brief physical exam, and laboratory tests to assess
kidney function. The examining physician and medical review officer found no
medical condition that would preclude King from providing a urine specimen.
Failure to provide a sufficient amount of urine without an adequate medical
explanation for the failure is considered a refusal to test. See 49 C.F.R. §
40.191(a)(5) (2004). Refusal to test is grounds for revocation of a mechanic
certificate. See 14 C.F.R. § 65.23(b) (2004).
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As a result of King's failure to provide a sample, Northwest Airlines terminated
his employment and the FAA Administrator issued an emergency order on July 18,
2002 revoking his mechanic certificate. On July 25 King filed a notice of appeal, and
on July 26 the FAA filed the emergency order as its complaint before the Board
seeking permanent revocation of King's certificate. King filed an answer on July 30
in which he admitted paragraph 6(b) of the complaint which alleged that he had made
his first attempt to urinate at 4:50 p.m.
At the hearing before the ALJ on August 22, 2002, King asked to amend his
answer to change his admission that his first attempt had been at 4:50 p.m. to a denial.
The ALJ permitted the amendment over the FAA's objection, and King then testified
that his first attempt had been at 5:15 or 5:20 p.m. After hearing all the evidence, the
ALJ found that King had not been given a full three hours to provide a urine sample,
that he had not been advised to drink 40 ounces of water, and that the collector had
not monitored and measured King's consumption of fluids. The ALJ concluded that
the FAA regulations had not been followed and dismissed the order of revocation.
The FAA appealed to the Board, and it reversed the ALJ on legal grounds,
affirming the order of revocation of King's mechanic certificate. The Board held that
the ALJ had erred by allowing an amendment at the hearing without a showing of
good cause and by misinterpreting the regulation requiring the collector to urge water
consumption when an individual has difficulty in producing a sample. King then
petitioned this court for review.
II.
In his petition King argues that the Board erred by reversing the ALJ's decision
to allow his amendment, by not considering evidence that he offered after his answer
was amended, and by accepting results of an inadequate medical examination. He
contends that the Board's interpretation of the regulation dealing with the collector's
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duty to urge water consumption is inconsistent with the regulation's plain meaning
and purpose and notes that the ALJ found his testimony credible.
The FAA responds that the Board correctly held that the ALJ erred by allowing
King's amendment without a showing of good cause, in violation of the rules of
practice, and by permitting King to testify contrary to his earlier admission which had
established that he had been given the required three hours for the test. The FAA also
urges that substantial evidence supports the Board's finding that King had no medical
condition which precluded him from providing a urine specimen. Finally, the FAA
asserts that the Board's interpretation of the regulation dealing with a collector's duty
in respect to water consumption was not arbitrary, capricious, or an abuse of
discretion and therefore is entitled to deference.
Although the Board generally defers to the credibility findings of an ALJ,
Administrator v. Gusek, 1999 WL 64489, at *1 (N.T.S.B. Feb. 8, 1999), its review
of the FAA's interpretation of relevant regulations has a different standard. When
adjudicating aviation safety enforcement actions, the Board is bound by the FAA's
interpretation of its regulations unless it is arbitrary, capricious, or otherwise not
according to law. See FAA Civil Penalty Administrative Assessment Act of 1992,
Pub. L. No. 102-345, 106 Stat. 923 (1992) (codified as amended at 49 U.S.C. §§
44703, 44709, 46301(d) (2004)); see also Garvey v. NTSB, 190 F.3d 571, 576-77
(D.C. Cir. 1999) (Congress has "unambiguously directed the NTSB to defer to the
FAA's interpretations of its own regulations").
Federal appellate courts also review the FAA's interpretations of its own
aviation regulations with deference. See Garvey, 190 F.3d at 577. While courts may
affirm, amend, modify, or set aside Board decisions when appropriate, see 49 U.S.C.
§§ 1153(b)(3) and 46110(c) (2004), its decisions should be upheld unless they are
"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law." See 5 U.S.C. § 706(2)(A) (2004); Watkins v. NTSB, 178 F.3d 959, 961 (8th
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Cir. 1999) (per curiam). Factual findings are reviewed to determine whether they are
supported by substantial evidence in the record as a whole. See 5 U.S.C. § 706(2)(E)
(2004); Watkins, 178 F.3d at 961. Substantial evidence is "'such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.'" Erickson
Transp. Corp. v. Interstate Commerce Comm'n, 728 F.2d 1057, 1062 (8th Cir. 1984)
(citation omitted).
A.
FAA regulations provide that after an initial unsuccessful attempt to provide
a specimen, an individual has three full hours to complete the test. See 49 C.F.R. §§
40.193(b)(2) and (4) (2004). In his answer King agreed with the timeline stated in
the complaint and did not raise any issue about the amount of time he had been given,
but at the hearing before the ALJ he asked to amend his answer so he could argue he
had not been given three full hours. Although the FAA objected on the basis of
surprise, the ALJ granted the motion. This permitted King to testify that he made his
first attempt some 25 minutes later than he had previously admitted. The Board ruled
that the ALJ had erred by allowing the amendment in violation of its procedural rules
which require a showing of good cause and that this had been unfair to the FAA.2
King argues that the Board violated its precedent by reversing the ALJ's
decision on the amendment without evidence of prejudice, that the FAA had not
phrased its objection at the hearing in terms of no good cause shown, and that the
Board failed to consider all relevant evidence. The FAA responds that the last minute
amendment to King's answer was prejudicial because the Administrator had relied on
2
The Board's opinion and order stated: "The [FAA] Administrator, no less than
any other party appearing before our law judges, is entitled to fair and unbiased
treatment. We would admonish our judges to take pains to ensure that the due
process rights of all parties are unerringly respected." Belger v. King, 2002 WL
31132999, at *2 n.6 (N.T.S.B. Sept. 25, 2002).
-8-
his admission of key facts in preparing her case. King's answer was filed on July 30
and he did not attempt to correct or amend it until the August 22, 2002 hearing, even
though the parties had communicated and exchanged discovery in the interim. Since
his admissions had established that he was given three full hours to provide a urine
specimen, the FAA complains that the amendment put a presumptively resolved issue
back into play without notice.
The Board concluded that the ALJ had abused his discretion by allowing King
to change his answer at the hearing over the FAA's timely objection. The Board's
rules of practice "expressly and unequivocally limit a law judge's discretion to permit
an amendment to a pleading at the hearing to instances where good cause for the
change has been shown." Belger v. King, 2002 WL 31132999, at *2 (N.T.S.B. Sept.
25, 2002) (citing 49 C.F.R. § 821.55(e)). The standard in emergency matters such as
King's is not whether an amendment would prejudice the other party, but whether the
amendment is supported by good cause. See 49 C.F.R. § 821.55(c) (2004) ("The law
judge may permit or require a more definite statement or other amendment to any
pleading at the hearing, upon good cause shown and upon just and reasonable
terms."). See also Administrator v. Jones, 2001 WL 366429, at *2 (N.T.S.B. Apr. 6,
2001) ("Because any amendment that adds to a respondent's evidentiary burden in an
emergency case could be said to be at least potentially prejudicial, given the
exceptionally short discovery time available before a hearing must be held, our
regulations . . . obligate a law judge to ensure good cause supports all such
amendments."); Administrator v. Fuller, 2001 WL 366426, at *1 n.5 (N.T.S.B. Apr.
6, 2001) (ALJ did not abuse its discretion by rejecting amendment without cause).
The Board's practice rules require that a movant make a showing of good cause
in order to amend a pleading at the time of the hearing. The rules "expressly and
unequivocally" restrict the ALJ from granting a motion to amend in the absence of
such a showing. The record does not show that King provided any reasons for his
requested amendment and despite the FAA's timely objection, the ALJ made no
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findings in support of his decision to permit it. King claims that he had discussions
with the ALJ before the hearing in which he provided cause, but under its governing
rules of practice the Board declined to consider any ex parte conversation that was
not on the record. See 49 C.F.R. § 821.40 (2004) (testimony and exhibits together
with papers, requests, and rulings constitute the exclusive record of the proceedings).
King now argues that his purpose was to expedite the proceedings by his amendment,
but a last minute change in position which surprises the other party and leads to the
introduction of unexpected and potentially decisive evidence is unlikely to expedite
the process in a fair way. Moreover, King gave no reason on the record for his
untimely request, and the ALJ made no findings to support his ruling.
We conclude that the Board did not abuse its discretion or act arbitrarily in
determining that the ALJ had erred by permitting an amendment at the hearing
without a showing of good cause, in vacating the amendment to King's answer to
paragraph 6(b) and striking his new evidence, and in reversing the finding that he had
received less than three hours to provide a urine specimen.3
B.
King also challenges the Board's interpretation of the collector's obligation
under 49 C.F.R. § 40.193(b)(2). That regulation provides that if an employee fails
to provide sufficient urine, the collector "must . . . [u]rge the employee to drink up to
40 ounces of fluid, distributed reasonably through a period of up to three hours or
until the individual has provided a sufficient urine specimen, whichever occurs first."
3
Because the Board did not act arbitrarily or capriciously in enforcing its
practice rule, we need not discuss its findings that the ALJ had ignored some of the
evidence and that consideration of all the evidence, even with King's new testimony,
would have led to a finding that more than three hours elapsed between his first
attempt and the final opportunity presented when Bishop asked if he was sure he
couldn't provide a sample. King, 2002 WL 31132999, at *2 n.7.
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Id. Although there was conflicting evidence, the ALJ found that Ortiz had not
explicitly mentioned 40 ounces to King. The ALJ also found that Ortiz had not used
a measuring device or watch to ensure that King's water consumption was evenly
distributed over the three hours.
The Board reversed the ALJ's interpretation of the regulation as the judge
recognized it might.4 The Board held that 49 C.F.R. § 40.193 does not provide that
a test is not valid if the collector does not monitor or administer an employee's water
consumption or urge that 40 ounces be consumed. The Board explained:
There is, however, no basis in the regulatory history for concluding that
a test should be invalidated if the collector did not himself dispense to
the respondent measured cups of water totaling 40 ounces, as the law
judge suggests he needed to do, and there is no showing on this record
that such a procedure is utilized by those performing drug testing for
Northwest Airlines or anyone else. Moreover, the regulatory history
does not suggest that drinking that quantity of water would produce any
specific amount of urine for a specimen. Rather, it was selected
essentially as a cap on the amount of water an individual should
consume without raising concerns over water intoxication or dilution of
a specimen.
King, 2002 WL 31132999, at *3 (emphasis added). The Board concluded that Ortiz
had satisfied the requirements of the regulation because it did not require him to
measure out fluids over the period of the test and he had told King to drink water in
order to overcome his difficulty in providing a urine specimen even if he did not
mention 40 ounces. The ALJ's contrary reading would require a more structured
workplace testing process, said the Board, than "so far as this record shows, ever
occurs." Id.
4
The ALJ commented during the hearing that, "Everybody here is going to have
an interpretation of that regulation [49 C.F.R. § 40.193], and ultimately the safety
board is going to decide whose interpretation is most accurate."
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In his petition for review King contends that the Board's interpretation ignores
the plain language of the regulation. Since the ALJ found that Ortiz never mentioned
40 ounces, King argues that the collector did not meet the requirements of the
regulation. King also asserts that Ortiz failed to encourage him to drink until almost
halfway through the collection period, thus failing to ensure a reasonable distribution
of fluids. The FAA counters that the Board's interpretation of the regulation is
entitled to deference. It argues that the regulatory history supports its position that
the collector is not required to administer or monitor fluid consumption, that the
ALJ's insistence that the collector use a measuring device and watch misapplied the
regulation, and that 40 ounces was intended as a cap to prevent water intoxication and
specimen dilution. It also contends there is substantial evidence in the record which
was not considered by the ALJ, but which shows that Ortiz did urge King to drink up
to 40 ounces.5
King has not cited any judicial or administrative precedent inconsistent with
the Board's interpretation of this regulation,6 and the Board's position has support in
the regulatory history. According to the Department of Transportation, the purpose
of the regulation is to allow an employee an enhanced opportunity to provide a
sufficient specimen and to avoid an unnecessarily complicated collection process.
5
The FAA refers to Ortiz's testimony and his collector statement prepared
within two weeks of the test, corroborated by Bishop's testimony and his
contemporaneous memorandum of his talk with Ortiz confirming that the collector
had urged 40 ounces of fluid.
6
King cites only an arbitration decision dealing with a labor agreement which
incorporated Department of Transportation drug testing regulations. See Davidson
Transit Org., 117 Lab. Arb. Rep. (BNA) 1193 (Sept. 12, 2002). Although the
arbitrators' interpretation of the regulation on water consumption was similar to the
ALJ's, it is the FAA that has initial responsibility for interpreting and enforcing its
regulation and the Board that is charged with adjudicating conflicts dealing with its
interpretations. See 49 C.F.R. § 800.3(b) (2004).
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See Procedures for Transportation Workplace Drug and Alcohol Testing Programs,
61 Fed. Reg. 37,693, at *37,696 (July 19, 1996) (final rule) (codified at 49 C.F.R. pt.
40).7 The Department rejected a proposed schedule under which eight ounces of fluid
would be consumed each half hour up to 40 ounces because it would have made the
collection process too burdensome to administer. Id. Under the regulation as revised
in 2000, the employee largely determines whether, when, and how much to drink in
order to produce the required urine specimen within the given time period. The
revision relaxed the collector's responsibilities from directing water consumption by
the employee to urging it, compare 49 C.F.R. § 40.25(f) (1996) with 49 C.F.R. §
40.193 (2000), and no longer deemed it a refusal to test if an employee rejected
fluids, thus placing responsibility on the employee to avail himself of fluids if needed
to produce a specimen.
The ALJ's overly formalistic interpretation of the regulation would require the
collector to use a measuring cup and stop watch without regard to the practical
realities of workplace testing. Here, there was substantial evidence in the record for
the Board's findings that King was made aware of the relationship between the
consumption of liquids and the production of a urine sample and that his failure to do
so was not attributable to the collector's administration of the test.
We conclude that the Board's interpretation of 49 C.F.R. § 40.193 is
reasonable, and neither arbitrary, capricious, nor an abuse of its discretion. Watkins,
178 F.3d at 961. Because the ALJ applied a contrary interpretation in finding that
7
In revising the regulations, the Department of Transportation reviewed survey
data from 18,800 drug tests conducted over a two week period at nearly 500
collection sites. The average time for an employee to complete a urine test, from the
paperwork stage until a specimen was provided, was about 12.4 minutes. The test
subjects produced an adequate specimen in 98.8% of the collections. Id. 61 Fed. Reg.
at *37,695.
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King's drug test had not been administered properly, his decision to overturn the
FAA's revocation order cannot stand.8
III.
The revocation of a mechanic certificate may seem a harsh sanction without
proof of illicit drug use, but the drug testing regulations embody a judgment that an
unexplained failure to provide a specimen for testing may well reflect an effort to
evade a positive drug test result, and thus revocation is warranted. See Administrator
v. Krumpter, 1998 WL 801755, at *3 (N.T.S.B. Nov. 13, 1998); Administrator v.
Pittman, 1998 WL 400022, at *2 n.7 (N.T.S.B. June 29, 1998) (employees could
routinely escape accountability for alcohol or drug misuse by refusing to cooperate
unless revocation were the predictable consequence). Random drug testing in the
workplace is the most reliable method of discovering whether an employee is working
under the influence of a forbidden substance, and the testing program was put in place
in the interest of air safety. See Administrator v. Wright, 2001 WL 540575, at *2
(N.T.S.B. May 17, 2001); Anti-Drug Program for Personnel Engaged in Specified
Aviation Activities, 53 Fed. Reg. 47,024 (Nov. 21, 1988) (final rule) (codified at 121
C.F.R. pts. 61, 63, 65, 121, and 135).
The Board has "a wide range of discretion in imposing sanctions," Balestra v.
Busey, 923 F.2d 120, 122-23 (8th Cir. 1991) (citing Erickson v. NTSB, 758 F.2d 285,
290 (8th Cir. 1985)), and the record does not reflect that it abused its discretion in
upholding the revocation of King's mechanic certificate. Neither did it abuse its
discretion by holding that the ALJ erred in allowing an amendment at the hearing
8
King also argues that his medical examination was flawed by an underlying
assumption that he had been urged to drink 40 ounces of fluid over three hours.
There is nothing in the record to support this argument, however, or to cast doubt on
the examining physician's finding that King had no medical condition precluding him
from providing the required urine sample.
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without good cause shown. The Board's interpretation of the regulation relating to
water consumption was not arbitrary or capricious, and there is substantial evidence
in the record to support its findings that King's failure to provide a urine specimen
was not due to a medical problem and that it amounted to a refusal to test.
Accordingly, we affirm the order of the Board.
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