Charles Erwin v. FAA (PUBLIC) ( 2021 )

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 22, 2021 Decided December 28, 2021
No. 20-1443
CHARLES ERWIN,
PETITIONER
v.
FEDERAL AVIATION ADMINISTRATION,
RESPONDENT
On Petition for Review of an Order
of the Federal Aviation Administration
Joshua D. Burns argued the cause for petitioner. On the
briefs was D. Michael McBride III.
Casey E. Gardner, Attorney, Federal Aviation
Administration, argued the cause and filed the brief for
respondent.
Before: HENDERSON, TATEL and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
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KAREN LECRAFT HENDERSON, Circuit Judge:1 When
Charles Erwin, a commercial airline pilot with a diagnosed
alcohol dependence, tested positive for alcohol, the Federal
Aviation Administration (FAA) withdrew his medical
certification required for flight. Erwin, whose test came less
than a day after consuming food prepared in beer, requested
reconsideration of the FAA’s decision with documentation to
demonstrate that the positive test was due to unknowing
exposure to alcohol. Standing firm, the FAA issued a short
order denying Erwin’s request but failing to explain adequately
its denial. Accordingly, we remand to the FAA for a more
complete explanation of its decision. See Friedman v. FAA, 841
F.3d 537, 544–45 (D.C. Cir. 2016) (Friedman I).
I. Background
A. Statutory and Regulatory Background
The Congress has directed the FAA to “promote safe flight
of civil aircraft” by promulgating regulations, including those
“necessary for safety in air commerce.” 49 U.S.C. § 44701(a),
(a)(5). Overseeing pilot certification is an important part of the
FAA’s safety mandate. See id. § 44702. The FAA fulfills its
safety mandate by requiring that, in addition to a pilot
certificate, see id. § 44703(a), a commercial pilot hold a
medical certificate issued under 14 C.F.R. part 67, 14 C.F.R.
§ 61.3(c)(1). The requirements for medical-certificate
eligibility vary based on the class of certificate sought. 14
C.F.R. §§ 61.23(a), 67.101–.115 (first-class certificate),
67.201–.215 (second-class certificate), 67.301–.315 (third-
class certificate). A commercial airline pilot may exercise
1
NOTE: Portions of this opinion contain sealed information,
which has been redacted.
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certain privileges—for example, pilot-in-command
privileges—only if he holds a first-class medical certificate. Id.§ 61.23(a)(1). For a first-class certificate, a pilot must meet a
host of medical standards, including, inter alia, vision,
physical, mental and cardiovascular standards. See id.
§§ 67.101–.115. If a pilot meets all of the medical standards,
he “is entitled to” an unrestricted medical certificate. Id. § 67.3.
To meet the mental standards for an unrestricted medical
certificate, a commercial airline pilot must not have an
“established medical history or clinical diagnosis of . . .
[s]ubstance dependence.” Id. § 67.107(a)(4). A codified
exception to this prohibition allows a pilot with a diagnosed
substance dependence to be eligible for an unrestricted medical
certificate if “there is established clinical evidence, satisfactory
to the Federal Air Surgeon, of recovery, including sustained
total abstinence from the substance(s) for not less than the
preceding 2 years.”2 Id.
If a pilot with a diagnosed substance dependence fails to
meet the “clinical evidence” test, the pilot must operate under
a “Special Issuance of a Medical Certificate” (special issuance
authorization). Id. § 67.401(a). The Federal Air Surgeon has
discretion to grant a special issuance authorization and may do
so if the pilot shows “to the satisfaction of the Federal Air
Surgeon” that he can perform his duties “without endangering
2
The FAA Administrator has delegated the authority to
“[i]ssue, renew, and deny medical certificates” and special issuance
authorizations to the Federal Air Surgeon. 14 C.F.R. § 67.407(a).
The Federal Air Surgeon heads the FAA’s Office of Aerospace
Medicine, whose mission is to “[e]nhance aerospace safety through
aeromedical standards, certification, surveillance, education and
research.” Office of Aerospace Medicine Organization, FAA Order
1100.3K , ch. 1, ¶ 7 (Nov. 1, 2018); see also id. at 11 (Figure 2-1).
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public safety during the period in which the [a]uthorization
would be in force.” Id. The Federal Air Surgeon may
“[c]ondition the granting of a new [a]uthorization on the results
of subsequent medical tests, examinations, or evaluations,” id.
§ 67.401(d)(2), and may “[l]imit the duration of an
[a]uthorization,” id § 67.401(d)(1). When the authorization
expires, the pilot must “again show to the satisfaction of the
Federal Air Surgeon” that he can perform his duties “without
endangering public safety during the period in which the
[a]uthorization would be in force.” Id. § 67.401(a).
While a pilot holds a special issuance authorization, the
Federal Air Surgeon retains discretion to withdraw it, see id.
§ 67.401(f), and may exercise that discretion if, inter alia,
“[t]here is [an] adverse change in the holder’s medical
condition,” or “[t]he holder fails to comply with a statement of
functional limitations or operational limitations issued as a
condition of certification,” id. § 67.401(f)(1), (2). Within sixty
days after service of the withdrawal letter, the pilot may request
reconsideration by the Federal Air Surgeon and may file
“supporting medical evidence” with the request. Id.
§ 67.401(i)(2). The Federal Air Surgeon’s decision on the
reconsideration request is a final agency order and issues
within 60 days of the request. Id. § 67.401(i)(3).
The airlines and the FAA have developed a cooperative
program, the Human Intervention and Motivation Study
(HIMS) program, to “coordinate[] the identification, treatment
and return to” the cockpit of a pilot with a substance
dependence.3 Participation in the HIMS program is often a
condition of a special issuance authorization. A HIMS Aviation
3
About HIMS, Human Intervention Motivational Study,
https://himsprogram.com/about-hims/.
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Medical Examiner (HIMS AME) is trained to oversee pilots
who operate under special issuance authorizations and follows
strict FAA reporting requirements. See FAA, Guide for
Aviation Medical Examiners 421–29 (2021) (AME Guide). In
September 2020, the FAA accepted NTSB Safety
Recommendation A-07-43 and created the HIMS Step Down
Plan (Plan).4 Memorandum from Penny M. Giovanetti, D.O.
Director, Med. Specialties Div., AAM-200 to AAM-200,
AMCD, Reg’l Flight Surgeons 1 (Sept. 8, 2020) (hereinafter
HIMS Step Down Plan Memorandum). The Plan creates tiers
through which a pilot progresses based on his recovery,
effective on the date the FAA issues the special issuance
authorization. See AME Guide at 447. The FAA, not the pilot’s
HIMS AME, retains the final authority on when a pilot
progresses through the tiers. Id. at 448. As he progresses, the
pilot is subject to less onerous monitoring requirements. Id.;
infra at 10–11. For example, by moving from the “Advanced
Phase-3” to the “Maintenance Phase-4,” the pilot no longer
must attend a weekly peer addiction support group or undergo
random alcohol or drug testing. AME Guide at 447.
B. Factual and Procedural History
Charles Erwin (Erwin) is a commercial airline pilot who
began his flying career over a decade ago, operating under an
unrestricted first-class medical certificate.
Upon
completion of an inpatient treatment program, Erwin entered
4
Documents related to the HIMS Step Down Plan are located
on the HIMS program website:
https://himsprogram.com/documents/.
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the HIMS program to obtain a special issuance authorization
because his substance dependence diagnosis and insufficient
clinical evidence of the required two-year abstinence
disqualified him from operating under an unrestricted medical
certificate. Based on
and
the FAA granted Erwin
his first special issuance authorization (Authorization) on May
17, 2017. Unsealed Joint Appendix (J.A.) 68–71. The
Authorization contained monitoring conditions, including
random alcohol testing at least fourteen times per year,
biannual evaluations by Erwin’s HIMS AME, annual
psychiatric evaluations, aftercare counseling and reporting
requirements. J.A. 70. Crucially, the Authorization was
“contingent upon total abstinence from alcohol.” J.A. 69
(emphasis omitted). It was scheduled to expire on May 31,
2020.
On December 13, 2017, Erwin ate a lunch of pulled pork
at a Franklin, Tennessee restaurant. The menu did not note that
the pork was prepared in beer. Erwin took some of the meal
home and ate the leftovers that night. The next morning, Erwin
submitted to a random alcohol test.
On December 28, 2017, one day after learning of the
positive test, Erwin voluntarily took additional tests,
specifically tests for phosphatidyl ethanol (PEth) in his blood
and EtG in his hair and nails. Those tests came back negative.
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Once the FAA learned of the positive test, it withdrew
Erwin’s Authorization on January 9, 2018.
On March 9, 2018, pursuant to 14 C.F.R. § 67.401(i),
Erwin requested the Federal Air Surgeon to review the
withdrawal, maintaining that he had tested positive due only to
inadvertently consuming food cooked in beer. With his
reconsideration request, Erwin submitted numerous exhibits
and a report from a forensic toxicologist, Dr. Thomas Kupiec,
to support his claim. The exhibits included, inter alia, evidence
that Erwin ordered pulled pork at the restaurant, J.A. 191–92;
an email from the restaurant stating that Erwin’s dish was, “in
fact, cooked with beer,” even though the menu did not mention
the beer, J.A. 193–94;
a 2012 Substance Abuse and Mental Health
Services Administration (SAMHSA) Advisory on biomarkers,
J.A. 202–09; a 2005 Memo from the Alabama State Board of
Medical Examiners cautioning against using solely a positive
urine EtG test to take disciplinary action against an employee,
J.A. 220–21; and a study recommending use of PEth tests after
a positive EtS or EtG test, J.A. 227–31. Kupiec’s report
discussed the drawbacks of using EtS/EtG tests to differentiate
inadvertent exposure to alcohol and intentional alcohol use,
concluding “within a reasonable degree of scientific certainty[]
that the result of Mr. Erwin’s urine analysis does not represent
conclusive evidence of intentional alcohol consumption.” The
FAA requested additional documentation, which Erwin
provided. In addition to the original documentation, Erwin
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provided
The FAA did not take action on his reconsideration request
within the sixty-day time frame, 14 C.F.R. § 67.401(i)(3);
instead, it reviewed Erwin’s documentation. It forwarded
Erwin’s records to
. On January 31,
2019, the FAA issued Erwin a new special issuance
authorization (Second Authorization), accepting Sager’s
recommendations. Erwin is currently operating under the
Second Authorization, which expires on January 31, 2024.
Although the FAA believed it had resolved Erwin’s
request, Erwin petitioned for a writ of mandamus in the U.S.
District Court for the Western District of Oklahoma to compel
the FAA to decide his reconsideration request. See Erwin v.
FAA, et al., Case No. CIV-20-661-D (W.D. Okla. Oct. 14,
2020). That action was dismissed after the Federal Air Surgeon
issued a decision (Final Order). J.A. 303–04. The two-page
Final Order explained that the Federal Air Surgeon “ha[d]
reviewed [Erwin’s] agency medical file and the additional
documentation [he] ha[d] submitted in support of [his] request
for review of the withdrawal of [the] Authorization” and
concluded that “the additional information and documentation
is not sufficient to reverse” the withdrawal and “affirm[ed] the
withdrawal of [the] Authorization.” J.A. 303. The Federal Air
Surgeon noted that the positive alcohol test was an “adverse
change” in Erwin’s medical condition, demonstrated that
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Erwin did not maintain “total[] abstinen[ce]” and necessitated
“a new evaluation of [his] current medical condition” in the
interest of “public safety.” Id. (citing 14 C.F.R. § 67.401(f)).
Erwin timely petitioned for review, claiming the Final Order
was arbitrary and capricious under § 706(2)(A) of the
Administrative Procedure Act (APA). 5 U.S.C. § 706(2)(A).
II. Analysis
A. Standing
“Because Article III limits the constitutional role of the
federal judiciary to resolving cases and controversies, a
showing of standing ‘is an essential and unchanging’ predicate
to any exercise of our jurisdiction.” Fla. Audubon Soc’y v.
Bentsen, 94 F.3d 658, 663 (1996) (en banc) (internal citation
omitted) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992)). To demonstrate the “irreducible constitutional
minimum of standing,” Lujan, 504 U.S. at 560, the petitioner
must show “(1) a personal injury-in-fact that is (2) fairly
traceable to the defendant’s conduct and (3) redressable by the
relief requested,” Int'l Bhd. of Teamsters v. TSA, 429 F.3d
1130, 1134 (D.C. Cir. 2005) (quoting Rainbow/PUSH Coal. v.
FCC, 396 F.3d 1235, 1240 (D.C. Cir. 2005)). The petitioner's
standing burden is “the same as that of a plaintiff moving for
summary judgment in the district court: it must support each
element of its claim to standing ‘by affidavit or other
evidence.’” Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir.
2002) (quoting Lujan, 504 U.S. at 561). The alleged injury-in-
fact must be “concrete and particularized,” and “actual or
imminent, not conjectural or hypothetical,” Lujan, 504 U.S. at
560 (internal quotation marks omitted), and “it must be likely,
as opposed to merely speculative, that the injury will be
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redressed by a favorable decision,” id. at 561 (internal
quotation marks and citations omitted).
Erwin’s case is unusual because his original Authorization
would have expired on May 31, 2020, and he is currently
operating under a Second Authorization that, on its face,
imposes the same monitoring requirements as the original,
albeit with a longer duration. Compare J.A. 68 (establishing
duration of Authorization as thirty-six months), with J.A. 276
(establishing duration of Second Authorization as sixty
months). Accordingly, the FAA argues that even if we vacate
its Final Order, Erwin cannot demonstrate an injury because he
will “continue to be subject to an [a]uthorization with
monitoring requirements—regardless of the expiration date
stated on his Authorization—unless and until he meets the
medical standards for an unrestricted certificate in [14 C.F.R.]
part 67.” Resp’t Br. 40–41 (emphasis in original).
To support his standing, Erwin asserts several injuries:
additional monitoring requirements based on the Second
Authorization, the lost opportunity to obtain an unrestricted
medical certificate, damage to his reputation and
Because the first asserted injury is sufficient to establish
standing, we “need not address” the final three. See Sierra Club
v. EPA, 755 F.3d 968, 976 n.2 (D.C. Cir. 2014).
Erwin has a cognizable injury arising from his poorer
position in the HIMS Step Down Plan, and the accompanying
extended monitoring, which we can likely redress by
remanding the Final Order. See Lujan, 504 U.S. at 560–61.
Erwin alludes to the Plan by referencing its genesis: NTSB
Safety Recommendation A-07-43. Although neither Erwin nor
the FAA elaborates on the Plan, the FAA has apparently begun
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applying the Plan through guidance to pilots with special
issuance authorizations. See AME Guide at 446–48. Under the
Plan, pilots progress through tiers based on the number of years
they have flown under a given special issuance authorization.
See HIMS Step Down Plan Memorandum at 1. As they
progress, the pilots “step down” in tiers and receive less
monitoring as a result. See AME Guide at 447. The tiers are
based on an “uncomplicated progression of recovery,” which
includes compliance with the special issuance authorization,
the pilot’s individual evaluation by HIMS professionals and
FAA review. Id.As a pilot currently under special issuance authorization,
Erwin is subject to the Plan. His Authorization issued on May
31, 2017, but the FAA withdrew the Authorization and
required Erwin to obtain the Second Authorization, which he
has operated under since January 31, 2019. Erwin therefore is
about two years further behind in his progression through the
Plan than he would be but for the Final Order. Translated into
tiers, the two-year gap puts Erwin in “Early Phase-2” rather
than “Advanced Phase-3” and he will now not progress to
Advanced Phase-3 until 2024. See AME Guide at 447. In Early
Phase-2, he must undergo monthly peer-pilot and chief-pilot
assessments that he would not have faced under the
Authorization. See id. (demonstrating progression through
tiers); J.A. 278 (detailing that Erwin must provide reports from
his chief pilot and a peer pilot).
By remanding the Final Order for “further proceedings,”5
it is “likely, as opposed to merely speculative,” see Lujan, 504
5
Under 49 U.S.C. § 46110(c), this court may only “affirm,
amend, modify, or set aside any part of the order” but we may also
“order the . . . [FAA Administrator] to conduct further proceedings.”
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U.S. at 561, that we can redress Erwin’s lack of progression
because his FAA medical file would include the remand, thus
suggesting an “uncomplicated progression of recovery,” AME
Guide at 447.6 The FAA suggests that Erwin will “continue to
be subject to an [a]uthorization with monitoring requirements.”
Resp’t Br. 40. But even if the FAA is correct—and it may not
be—its position ignores the effects of the Plan. Erwin “need
not prove that granting the requested relief is certain to redress
[his] injury, especially where some uncertainty is inevitable.”
Competitive Enter. Inst. v. NHTSA, 901 F.2d 107, 117–18
(D.C. Cir. 1990). Having provided evidence of his continued
“uncomplicated progression of recovery,” see supra at 7–8,
with only the positive test to the contrary, Erwin has provided
sufficient evidence for us to conclude that remand for further
proceedings would likely redress his stunted Plan progress.
B. Merits
Having determined that Erwin has standing, we turn to the
merits. Our review of the FAA Final Order is deferential: “We
may overturn nonfactual aspects of the FAA’s decision only if
they are ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’” Boca Airport, Inc. v.
FAA, 389 F.3d 185, 189 (D.C. Cir. 2004) (quoting 5 U.S.C.
§ 706(2)(A)). “The FAA's factual determinations are
conclusive if they are supported by substantial evidence.” City
of Santa Monica v. FAA, 631 F.3d 550, 554 (D.C. Cir. 2011)
(citing 49 U.S.C. § 46110(c)). We may not “substitute [our]
judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of
6
At oral argument, FAA counsel indicated that a pilot’s FAA
medical file includes “the entirety of his history with the FAA.” Tr.
Oral Arg. 22. Our remand would therefore be part of Erwin’s medical
file.
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the United States, Inc. v. State Farm Mutual Auto. Ins. Co., 463
U.S. 29, 43 (1983). Our role is to determine whether the FAA
has “examine[d] the relevant data and articulate[d] a
satisfactory explanation for its action” that does not “fail[] to
consider an important aspect of the problem,” “run[] counter to
the evidence” or is “so implausible that it could not be ascribed
to a difference in view or the product of agency expertise.” Id.We may not, however, “supply a reasoned basis for the
agency’s action that the agency itself has not given.” Id.(internal quotation marks and citation omitted).
Erwin argues that we should set aside the Final Order as
arbitrary and capricious because the FAA failed to explain
adequately its action. Erwin points to the FAA’s failure to
explain “how a single positive test overcame all other
documentation that supported [his] contention that he had an
accidental, extraneous ethanol exposure” and highlights that
the FAA did not mention “what documentation was reviewed,
weighed, or assigned credibility” or why it “ignored”
Pet’r
Br. 23–24 . In response, the FAA argues that
“quite frankly, there [was] not much more the Federal Air
Surgeon needed to say” beyond linking the positive test and the
violation of the conditions of his discretionary authorization.
Resp’t Br. 37–38. The FAA further maintains that it need not
“author an essay for the disposition of each application” and
that “[i]t suffices, in the usual case, that [the court] can discern
the why and wherefore.” Resp’t Br. 38 (second alteration in
original) (quoting BellSouth Corp. v. FCC, 162 F.3d 1215,
1224 (D.C. Cir. 1999)).
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Here, however, the FAA asks us to “discern the why and
wherefore” for its decision based on one statement in the
Federal Air Surgeon’s Final Order:
I have reviewed your agency medical file and
the additional documentation you have
submitted in support of your request for review
of the withdrawal of your Authorization. I have
determined, however, that the additional
information and documentation is not sufficient
to reverse the [withdrawal], and I must affirm
the withdrawal of your Authorization.
J.A. 303. Granted, an exegesis may not be necessary but the
FAA has not provided even one sentence demonstrating a
“rational connection between the facts found and the choice
made.” State Farm, 463 U.S. at 43 (quoting Burlington Truck
Lines v. United States, 371 U.S. 156, 168 (1962)). It argues that
it may rely solely on the positive test and Erwin’s history of
alcohol dependence but ignores Erwin’s evidence scientifically
attacking the positive test, notwithstanding the withdrawal
regulations explicitly provide that a request for review “may be
accompanied by supporting medical evidence.” 14 C.F.R.
§ 67.401(i)(2). In our view, Erwin’s reconsideration request
and accompanying evidence, set out supra at 7–8, merits the
FAA’s explicit consideration. Its Final Order does not do so.
And the FAA is a repeat offender. As we have previously told
the agency, it “cannot simply declare its ‘expertise’; it must
exercise that expertise and demonstrate sufficiently that it has
done so else we have nothing to review much less defer to.”
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Village of Bensenville v. FAA, 376 F.3d 1114, 1122 (D.C. Cir.
2004) (internal footnote omitted).7
The FAA acted arbitrarily and capriciously by failing to
weigh the evidence provided with Erwin’s reconsideration
request. See Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C.
Cir. 1993) (“The requirement that agency action not be
arbitrary or capricious includes a requirement that the agency
adequately explain its result.”). Given the lack of explanation,
“any analysis of the FAA’s denial would be imprudent.” See
Friedman I, 841 F.3d at 545; see also Fla. Power & Light Co.
v. Lorion, 470 U.S. 729, 743–44 (1985) (“If the record before
the agency does not support the agency action [or] if the agency
7
The FAA’s handling of an earlier medical certification
decision speaks volumes. See Friedman v. FAA, 841 F.3d 537, 544–
45 (D.C. Cir. 2016) (Friedman I). In Friedman I, we rebuked the
FAA for failing to provide “any rationale” to require specific
diabetes data from a pilot candidate for a first-class special issuance
authorization. See id. at 544–45. There, the FAA first attempted—
unsuccessfully—to provide a rationale for requiring the data in its
briefs to this court. Id. at 544. Here, during oral argument, the FAA
again tried to provide a post hoc explanation for its denial by arguing
that Erwin’s “own forensic toxicology report that he submitted for
[the FAA] to consider says that [his positive test] could be indicative
of previous heavy drinking one to three days before the test” while
at the same time conceding that explanation was absent from the
Final Order. Tr. Oral Arg. 19–20. Granted, the FAA may on remand
reach the same result after considering the non-record evidence cited
in its brief, as it did successfully in Friedman II. See Friedman v.
FAA, 890 F.3d 1092, 1097–98 (D.C. Cir. 2018) (Friedman II) (after
remand, FAA adequately explained its data requirement by
providing “its own, unequivocal medical explanation for requiring”
specific data from diabetic pilot). Nonetheless, it will have then met
its burden.
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has not considered all relevant factors[,] . . . the proper course,
except in rare circumstances, is to remand to the agency for
additional investigation or explanation.”). Instead, we remand
to the FAA for it to consider the evidence Erwin provided and
to make explicit the “why and wherefore” of its action.
BellSouth Corp., 162 F.3d at 1224.
So ordered.