[00:00:00] Speaker 01: Case number 24-1348, Ryan J. Pohl, the D.T. [00:00:06] Speaker 01: versus Federal Administration Administration. [00:00:09] Speaker 01: Ms. [00:00:09] Speaker 01: Banyan for the D.T., Ms. [00:00:11] Speaker 01: Lilly for the respondent. [00:00:13] Speaker 05: May it please the court? [00:00:16] Speaker 05: I'm Stephanie Spagna and I'm here on behalf of the petitioner, Ryan Paul. [00:00:21] Speaker 05: The FAA has just claimed any authority to review Amerijet's determination that First Officer Paul had supposedly refused a random DOT FAA drug test. [00:00:35] Speaker 05: The FAA's position is insupportable as a matter of regulatory interpretation. [00:00:40] Speaker 05: It is in direct conflict with the FAA's own orders directing it to investigate whether a refusal actually took place. [00:00:51] Speaker 05: And it also violates Mr. Paul's due process rights. [00:00:56] Speaker 05: Even if the FAA were somehow correct that DOT regulations actually prohibited from reviewing an employer's refusal report, this arrangement clearly violates. [00:01:10] Speaker 04: So you can send something to a third party for conducting of the drug test. [00:01:17] Speaker 04: Let them make a determination. [00:01:18] Speaker 04: Your dispute is about whether the FAA stays in control of that decision. [00:01:22] Speaker 05: That's essentially it. [00:01:23] Speaker 05: Yes, Your Honor. [00:01:24] Speaker 05: OK. [00:01:24] Speaker 05: Yes. [00:01:27] Speaker 05: And so our position also is that this arrangement clearly violates the private non-delegation doctrine because a private entity and not the FAA is exercising the final decision-making authority as to whether an employee committed a regulatory violation by refusing to submit to a random drug test. [00:01:47] Speaker 05: In response to points that the respondent raised in their supplemental brief, the employer's task here is not simply ministerial. [00:01:58] Speaker 05: It's not a matter of adding numbers and stamping paper. [00:02:01] Speaker 05: It's not a matter of making recommendations that the government can accept or reject at will. [00:02:09] Speaker 05: It is actually exercising a decision. [00:02:13] Speaker 05: It is determining that the pilot has refused the drug test. [00:02:17] Speaker 05: And from that decision, very severe and permanent consequences flow. [00:02:23] Speaker 05: That pilot is immediately barred from holding a first class airman medical certificate for two years. [00:02:30] Speaker 05: And then even beyond that, that pilot will be marked as a rule violator and a substance abuser in the pilot records database. [00:02:40] Speaker 05: And if the pilot wants to clarify something, certainly. [00:02:44] Speaker 00: I think you just said this finding revokes the Airman certificate. [00:02:50] Speaker 00: That's not true, right? [00:02:51] Speaker 05: No, no. [00:02:52] Speaker 00: It means that it's disqualifying for a future application, which is slightly different. [00:02:56] Speaker 05: Oh, yeah. [00:02:57] Speaker 05: Pardon me if I misspoke, Your Honor. [00:02:59] Speaker 05: I meant to say that he is barred from holding an Airman medical certificate, which is different from just an Airman certificate per se. [00:03:10] Speaker 05: So he cannot hold a medical for two years, which means that [00:03:14] Speaker 05: He cannot fly. [00:03:16] Speaker 05: And then in addition to that, he will also be marked permanently in the database as a substance abuser and a rule violator. [00:03:25] Speaker 05: And that's an extremely severe stigma and scarlet letter on his record for the remainder of his aviation career. [00:03:39] Speaker 05: The FAA has given the final authority to the employer, the private entity in this case. [00:03:45] Speaker 05: Mr. Paul has no recourse. [00:03:47] Speaker 05: There is simply no means for him to have the employer reverse their decision or modify this. [00:03:56] Speaker 05: He stuck with it forever. [00:03:58] Speaker 04: What would you take to mean on the August 27, 2024 letter about FAA saying not taking any legal enforcement? [00:04:07] Speaker 04: Like, what weight or what suggestion does that do to make it beneficial to Mr. Paul as the FAA claims? [00:04:15] Speaker 05: Well, I mean, the FAA declined to take enforcement action against Mr. Paul's Amherst certificate, which is a very serious action, which would have been, had they done that, would have been appealable to the National Transportation Safety Board. [00:04:32] Speaker 05: They elected not to do that. [00:04:34] Speaker 05: And I think we've made clear in our filings that we are not challenging that portion of their rule violation finding. [00:04:43] Speaker 05: We are challenging that finding to the extent that it adopts and incorporates and accepts as given the employer's report that he refused a drug test. [00:04:55] Speaker 02: If it had gone to the National Transportation Safety Board, [00:05:02] Speaker 02: I've sat on cases dealing with that. [00:05:05] Speaker 02: They hold evidentiary hearings, don't they? [00:05:08] Speaker 05: Yeah. [00:05:09] Speaker 05: Essentially, Your Honor, the absolute worst thing would have had to have happened to Mr. Paul for him to have had a chance at having the underlying refusal report reviewed. [00:05:22] Speaker 02: But since the... Before the board, would it have been de novo? [00:05:28] Speaker 02: On the question, did he refuse? [00:05:33] Speaker 05: On the question, to be honest with you, honor, I don't have an answer to that question, but I would be happy to supply a letter to that. [00:05:39] Speaker 02: They do conduct evidentiary hearings. [00:05:42] Speaker 05: Yes, yes. [00:05:44] Speaker 05: Yes, yes. [00:05:45] Speaker 05: So conceivably, they could have at that juncture have reviewed the merits or lack thereof of the refusal report. [00:05:53] Speaker 02: So the thing that makes this unreviewable is the fact that the FAA took, quote, no action. [00:06:01] Speaker 05: They took no action with respect to his airman certificate. [00:06:06] Speaker 05: That is correct. [00:06:07] Speaker 05: But they accepted without question the employer's report that he had allegedly refused to test. [00:06:16] Speaker 05: And from that, the legal consequences flow. [00:06:20] Speaker 02: One more question. [00:06:23] Speaker 02: Yes. [00:06:23] Speaker 02: It's one thing to say that you have the responsibility, Mr. Employer, [00:06:28] Speaker 02: to make the judgment about whether there's been a refusal or not. [00:06:33] Speaker 02: It's another thing to say whether that judgment is reviewable. [00:06:38] Speaker 02: Could he have sued his employer on the grounds of whatever grounds that the refuse, the consequence is harm to him? [00:06:50] Speaker 02: And so he brings an action against the employer to get that refusal finally revoked. [00:06:56] Speaker 05: Well, Your Honor, the regulations preclude him from being able to seek to get relief from those consequences against the employer in an arbitration or in any other forum. [00:07:10] Speaker 05: He simply has no means whatsoever. [00:07:13] Speaker 02: Are the regulations cited in your brief? [00:07:19] Speaker 05: Yes, regulation 49 CFR 40.191c. [00:07:27] Speaker 05: The regulatory consequences can't be overturned in an arbitration grievance, state court, or other non-federal forum. [00:07:35] Speaker 05: And so unless he was able to persuade somehow the employer to change its mind, he stuck with this. [00:07:44] Speaker 00: And I look at that regulation, and I was a little [00:07:48] Speaker 00: confused because the one thing it doesn't say, as you just said, it says non-federal forum. [00:07:52] Speaker 00: It doesn't say you can't sue in federal court. [00:07:54] Speaker 00: Has anyone ever tried that? [00:07:56] Speaker 05: I'm unaware of that, to be honest with you, Your Honor. [00:08:02] Speaker 05: My sense is that this is a fairly unique case on its facts. [00:08:07] Speaker 00: I had one clarifying question also. [00:08:09] Speaker 00: One of the immediate consequences of this determination is you're prohibited from flying until you complete the return to duty process, correct? [00:08:18] Speaker 05: That's correct, yes. [00:08:20] Speaker 00: What is your understanding of how long that process usually takes? [00:08:24] Speaker 00: And I'm sure it varies case to case. [00:08:26] Speaker 05: I think it varies significantly. [00:08:28] Speaker 05: It can be a few months to longer. [00:08:33] Speaker 05: I don't think that there's a hard and fast rule. [00:08:35] Speaker 05: I do want to clarify, Your Honor, thank you for that question, that we are not challenging the fact that if there is a legitimate report of a refusal [00:08:46] Speaker 05: than a return to duty test ensues. [00:08:49] Speaker 05: We're not challenging that fact. [00:08:51] Speaker 05: What we are challenging here is the fact that the FAA has essentially rubber stamped the employer's determination. [00:08:58] Speaker 05: And as a result, Mr. Paul has a scarlet letter and currently is unable to earn a livelihood in his chosen profession. [00:09:10] Speaker 02: If the regulations preclude the belief that you're seeking and the statute does not grant that belief, what is the basis for our court saying that he's entitled? [00:09:24] Speaker 02: Is it due process or is it a violation of the statute or what? [00:09:30] Speaker 05: Yes, Your Honor. [00:09:31] Speaker 05: Thank you for the question, Your Honor. [00:09:33] Speaker 05: We've argued this on several grounds. [00:09:36] Speaker 05: First, that this was arbitrary and capricious on the government's behalf, and in part because it has sought cover for essentially washing its hands by pointing to an inapposite regulation. [00:09:50] Speaker 05: 40.355 I speaks only to the respective responsibilities of an [00:09:59] Speaker 05: employer vis-a-vis service agent does not speak at all to the authority of a roaming agency. [00:10:07] Speaker 02: But that leaves the question, what regulation does speak to that? [00:10:12] Speaker 05: To the FAA's ability to review. [00:10:14] Speaker 05: Right. [00:10:17] Speaker 05: The, our position is that that is inherent in the FAA's role as the agency which is, to which this employer is subordinate. [00:10:28] Speaker 02: But there's no regulation that gives explicit authority to review or refuse, right? [00:10:33] Speaker 05: In terms of review, I am not able to recall one in particular at this moment, Your Honor. [00:10:41] Speaker 05: I will say that what the FAA did not do here was to comply with its own order, the calling for it to conduct an investigation as to whether he actually had refused a test. [00:10:59] Speaker 05: you know, if this court were to rule in Mr. Paul's favor, then, you know, the appropriate remedy in our view, which we have requested, would be that for the court to vacate that portion of its rule violation and finding that Mr. Paul had refused the test, and then go forward and conduct the investigation that its own order said that it should have conducted in the first place. [00:11:29] Speaker 04: With respect to you making a suggestion that the FAA just rubber stamped the investigation, the information about Mr. Paul with respect to his vacation leave, his illness, was available before the August 27, 2024 letter by the FAA? [00:11:48] Speaker 05: Yes, that is correct. [00:11:49] Speaker 04: So then it's obviously available at the point of reconsideration as well. [00:11:53] Speaker 05: Yes, that information would be available then. [00:11:55] Speaker 05: Yes, Your Honor. [00:11:56] Speaker 04: When I look at the report of the FAA, it doesn't look like that information is all included in this timeline that they provided about the investigation. [00:12:08] Speaker 05: Could you, I'm not sure that I understand your question, Your Honor. [00:12:11] Speaker 04: Well, their investigative report doesn't look like all of the information that Mr. Paul was presenting is included to suggest that it was all considered. [00:12:20] Speaker 05: Yes, yeah, that's correct, yeah. [00:12:25] Speaker 04: All right, thank you. [00:12:26] Speaker 04: Thank you. [00:12:28] Speaker 05: Yes, thank you. [00:12:41] Speaker 03: Good morning, Your Honors, Janie Lilly for the FAA. [00:12:44] Speaker 03: I'd like to start by focusing this court on the action that is under review. [00:12:49] Speaker 03: Here, Mr. Paul has petitioned for review of the agency's decision not to take enforcement action against his airman certificate. [00:13:00] Speaker 03: That enforcement action was fully within the FAA's control and was fully favorable to Mr. Paul. [00:13:08] Speaker 04: You say favorable, but if you look at the wording of, and you're referring to the August 27, 2024 letter? [00:13:15] Speaker 04: Yes, Your Honor. [00:13:16] Speaker 04: It says, we have concluded our investigation into your refusal. [00:13:20] Speaker 04: Yes. [00:13:21] Speaker 04: And it goes on, we are not taking any legal enforcement action against you in connection with your refusal. [00:13:27] Speaker 04: So while you say there's no enforcement action, to me this reads as if you're agreeing that there was a refusal to submit. [00:13:35] Speaker 04: So then there's a negative implication on his record regarding that. [00:13:39] Speaker 03: If I may address both of those separately. [00:13:42] Speaker 03: So the enforcement action that is reviewable in this court and that FAA may take is a decision to suspend, revoke, place additional conditions on his airman certificate, basically his license to fly a plane. [00:13:54] Speaker 04: And when you say no enforcement action, it makes it sound like he's clear, like you're agreeing that with respect that he needed to have done. [00:14:03] Speaker 04: Yes, your honor, with respect to his have some duties that he needs to complete on a refusal to take tests. [00:14:09] Speaker 04: action that gives him I guess up to two years to get that done. [00:14:13] Speaker 03: Thank you your honor so that that is a separate requirement that is imposed by DOT regulations and if I can talk about exactly what's required there when an airman has been deemed or reported to refuse to not complete random drug testing that information gets sent to FAA and by operation of DOT's regulations [00:14:35] Speaker 03: The airman must do something to demonstrate that he is safe to flop. [00:14:40] Speaker 03: That's what the return to duty regular process is. [00:14:43] Speaker 03: He meets with a qualified substance abuse professional who then requires additional testing. [00:14:49] Speaker 03: So that is all that is required by the returns. [00:14:52] Speaker 04: I'm just confused about no enforcement action to me conflicts with he refused duty. [00:14:59] Speaker 04: Your honor, how are you helping him out? [00:15:01] Speaker 04: How do you, Dean, you saying that is being beneficial when you're now telling me all these things he needs to do? [00:15:06] Speaker 03: The FAA has said he may use his airman certificate. [00:15:09] Speaker 03: He can use it now. [00:15:11] Speaker 03: He can use his airman certificate separately in order to use it. [00:15:15] Speaker 03: There are lots of conditions on using your airman certificate. [00:15:17] Speaker 03: You've got to submit to random drug testing. [00:15:19] Speaker 03: You've got to maintain all sorts of certain standards here. [00:15:25] Speaker 03: There was the random drug testing was not completed. [00:15:27] Speaker 03: And so as part of DOT's regulations to when that happens. [00:15:33] Speaker 04: But it's a difference in not completed versus refusal to take tests. [00:15:38] Speaker 04: Your honor, I think that's a negative implication. [00:15:41] Speaker 04: Well, we're not complete. [00:15:43] Speaker 04: It could be we just couldn't get our time straights about our appointment times or something like that. [00:15:48] Speaker 03: Well, your honor, the regulations kind of define what refusal means and failure to show up for a drug test is a refusal, a failure to complete. [00:15:57] Speaker 03: And when you haven't completed your random drug test, DOT sensibly says, before we put you back doing safety sensitive functions, we want you to complete that drug test in the way that [00:16:08] Speaker 04: We ask you to do that. [00:16:09] Speaker 04: In fairness to you, in your supplemental briefing, it says, upon receiving a report of a refusal, the FAA investigates. [00:16:19] Speaker 04: Exactly. [00:16:20] Speaker 04: Besides what enforcement action? [00:16:22] Speaker 04: So what do you deem as your investigation? [00:16:25] Speaker 04: Because it doesn't seem to include Mr. Paul's side of the story. [00:16:29] Speaker 03: Your honor FAA completed an investigation took four months into the circumstances surrounding his refusal received the report of the refusal and include conducting any interview with him. [00:16:44] Speaker 03: Your honor, I don't know they have they haven't. [00:16:47] Speaker 03: I don't think petitioner has raised that as an objection. [00:16:50] Speaker 03: He was allowed to submit any information that he wanted to the FAA as part of its enforcement investigation. [00:17:03] Speaker 03: And then at the end of that, the FAA said, I've looked at all this information. [00:17:07] Speaker 03: And you're free to go and use your airman certificate. [00:17:11] Speaker 03: Now, one of the conditions of airman certificates is submission to random drug testing. [00:17:16] Speaker 03: And in this case, where it's not been completed, the FAA sensibly impose, I mean, the DOT sensibly imposes the requirement that where there's been a reported refusal, an incomplete drug test, that you complete the drug test after you meet with a substance abuse professional. [00:17:34] Speaker 00: You're framing this as though this letter just says, congratulations, we're taking no action against you. [00:17:40] Speaker 00: But his response is that you should read this letter as saying, you've asked us to review your employer's determination that you refused a drug test. [00:17:50] Speaker 00: We are not doing so. [00:17:52] Speaker 00: Also, we are not taking further enforcement against you. [00:17:55] Speaker 00: That is how you described the letter. [00:17:57] Speaker 00: The FAA does not review the employer's determination. [00:18:02] Speaker 00: There was a test refusal, and he sought our review to say that aspect of the order violates the law. [00:18:09] Speaker 00: So why is that not the way to think about what's going on here? [00:18:13] Speaker 03: Because the operative agency action is about whether he's allowed, whether he's safe and can continue flying planes. [00:18:23] Speaker 03: And the relevant considerations are the report of the refusal, investigation into the circumstances around the refusal. [00:18:30] Speaker 03: And FAA's ultimate determination is not about a refusal, but whether he can continue flying planes using his Airman Certificate. [00:18:37] Speaker 00: And they determined that that is the legal problem in the case that you don't go and check in any way whether the employer correctly determined that he refused a drug test. [00:18:50] Speaker 00: And so there's a he says there's a private non-delegation and a due process problem if you don't do that. [00:18:58] Speaker 03: Your Honor, the FAA did, in fact, investigate the circumstances surrounding the refusal. [00:19:04] Speaker 03: That was the point of the investigation. [00:19:05] Speaker 03: There was a report. [00:19:07] Speaker 04: They interviewed him. [00:19:08] Speaker 04: Like, what is the investigation? [00:19:10] Speaker 03: The drug abatement. [00:19:12] Speaker 03: division of the FAA under the supervision of the federal air surgeon conducts an investigation into, you know, receives information from the employer about the report, receives information from Mr. Paul. [00:19:26] Speaker 03: I think he made at least two different submissions of information around the determination and the circumstances. [00:19:38] Speaker 03: And the result of the investigation was FAA's [00:19:41] Speaker 03: decision that he could continue to use his airman certificate. [00:19:46] Speaker 03: And then separately, DOT regulations say you need to take a drug test. [00:19:52] Speaker 03: And where you haven't taken one. [00:19:58] Speaker 00: 0.285, whatever that 40.285 says, as you're reading it, says when your employer decides [00:20:09] Speaker 00: that you refused a drug test. [00:20:11] Speaker 00: You can't fly planes. [00:20:14] Speaker 00: You could before. [00:20:15] Speaker 00: But when the employer makes that determination, automatically, you can't fly planes anymore until you complete this process. [00:20:22] Speaker 00: And the FAA never reviews that determination. [00:20:25] Speaker 03: Well, Your Honor, I think we've explained before, the FAA does review that determination, determine whether you can use your airman certificate. [00:20:32] Speaker 00: But what it says is... It does never... The whole problem, if there is a problem in this case, is that he's in a black hole. [00:20:40] Speaker 00: He's saying, [00:20:42] Speaker 00: I would have gotten review if you took a harsher action against me, but you didn't take action against my certificate. [00:20:48] Speaker 00: And the result is no one ever double checks whether the employer had any basis to find I refused a drug test. [00:20:55] Speaker 03: Your honor, the question is whether he is safe to fly planes and can resume safety sensitive functions. [00:21:04] Speaker 03: The way DOT has determined [00:21:06] Speaker 03: that the appropriate way to do that is to ask him to take another drug test under the supervision of a substance abuse professional. [00:21:14] Speaker 03: haven't taken a drug test, haven't complied with the random drug testing requirements. [00:21:18] Speaker 03: So we say, please take another drug test under the supervision of a substance abuse professional. [00:21:23] Speaker 03: Then if you've satisfied those requirements, you tell the substance abuse professional exactly the circumstances around the refusal, and that person determines that the appropriate course is to take another drug test or perhaps have some counseling, [00:21:40] Speaker 02: be back up in the skies before FAA has completed its investigation into your... Even if the FAA, if I understand you, but even if the FAA reviewed the record and found that he didn't refuse, he'd still have to take a drug test because he was due to take one. [00:22:02] Speaker 03: Right, he hadn't taken a drug test in response to the random drug testing and so the FAA or the DOT's return to duty regulations provides a process for him to do so and prove that he's safe to fly. [00:22:16] Speaker 00: Can I ask you to respond to, so one of the arguments, assume there's nothing in the statute or the regulations that says the FAA is going to review this kind of thing. [00:22:25] Speaker 00: They argued in a brief that this order, the guidance does promise that. [00:22:32] Speaker 03: The handbook. [00:22:34] Speaker 00: Order 9-1-1. [00:22:37] Speaker 00: point E, whatever it is. [00:22:39] Speaker 00: And I don't think you all addressed that in your brief, so I was hoping to hear a response. [00:22:44] Speaker 03: Thank you, Your Honor. [00:22:45] Speaker 03: That's the Drug and Alcohol Compliance and Enforcement Surveillance Handbook, so the internal guidance to the Drug Abatement Division and others who are conducting investigations into refusals. [00:22:56] Speaker 03: And it's fully consistent with exactly what we're saying here, that FAA's Drug Abatement Division, when it investigates whether to take action against an Airman Certificate, [00:23:06] Speaker 03: looks into the circumstances of the reported refusal. [00:23:11] Speaker 00: Right. [00:23:12] Speaker 00: And one of the things it says is the purpose of these investigations is to determine whether a finding of non-compliance exists. [00:23:20] Speaker 00: And what Mr. Paul says is that is saying you are supposed to find out if he didn't comply with the regulations, in other words, whether he refused a drug test. [00:23:33] Speaker 03: I think those may be different things. [00:23:35] Speaker 03: The employer reports factual information about a report of refusal. [00:23:44] Speaker 03: determination is whether that fact, along with other facts surrounding the reported refusal, warrant legal enforcement actions. [00:23:54] Speaker 00: I completely understand that's the FDA's position. [00:23:57] Speaker 00: Their position is that this says we will review to determine whether a finding of noncompliance exists and that we should read that to mean [00:24:08] Speaker 00: No, actually, the handbook says we're also going to look at whether your employer was right and not treat its allegation as binding on us. [00:24:20] Speaker 03: I think we may be speaking past each other, but I think I'm saying the same thing, that the finding of noncompliance, the determination is exactly what FAA did here. [00:24:31] Speaker 03: It investigated the circumstances around the reported refusal and determined whether those justified a finding that he could not use his airman certificate. [00:24:44] Speaker 00: And then just to clarify, but your position is nothing in here or anything else says that the FAA will revisit the employer's determination that there was a refusal to test. [00:24:54] Speaker 03: The reported refusal is one factual input into the overall determination about whether to take legal enforcement action. [00:25:05] Speaker 03: And the court can posit any number of third-party factual information or report that the FAA or other government agencies use to trigger different requirements. [00:25:16] Speaker 03: And nothing about that presents a non-delegation problem. [00:25:20] Speaker 04: But under 49 USC, the 44702D, FAA, on its own determination, can reconsider any action by the private entity, right? [00:25:30] Speaker 03: I'm so sorry. [00:25:32] Speaker 03: I couldn't hear you. [00:25:32] Speaker 04: It can reconsider any action by the private entity. [00:25:35] Speaker 04: under the 49 USC 44702D? [00:25:44] Speaker 03: I'm sorry, I'm not sure which regulation your honor is referring to. [00:25:49] Speaker 00: So it's the statute, and it's very curious that no one has cited this, but 44702D, if I'm sorry, Judge Child, but it says, [00:26:01] Speaker 00: Subject to supervision and review, the administrator may delegate to a qualified private person the examination, testing, and inspection necessary to issue a certificate under this chapter. [00:26:12] Speaker 00: And then subparagraph three says, a person affected by an action of a private person may apply for reconsideration of the action by the administrator. [00:26:21] Speaker 00: That sure sounds like, yes, you can delegate something like this to a private employer. [00:26:27] Speaker 00: But if a person affected asks you to reconsider, the administrator has to do so. [00:26:32] Speaker 03: I'm not sure that- Why doesn't that describe this case? [00:26:35] Speaker 03: I know maybe you are not familiar at the- Yeah, I'm not sure that we've looked at that statute or briefed it, but be happy to provide supplemental briefing on the application of that subsection to this case. [00:26:52] Speaker 03: There are private parties involved in many aspects of the drug testing and enforcement scheme. [00:27:02] Speaker 03: And none of those involve a private non-delegation problem. [00:27:06] Speaker 03: The employer can impose drug testing requirements, can report those results to FAA, and that doesn't delegate government. [00:27:14] Speaker 00: Mr. Paul, we're concerned also, I'm sorry, about the database. [00:27:18] Speaker 00: Yes, sir. [00:27:19] Speaker 00: So we've talked about the return to duty requirement. [00:27:23] Speaker 00: This private employer determination also gets his name in this database. [00:27:27] Speaker 00: That's right. [00:27:29] Speaker 00: Why isn't that essentially a government run database that people have to check? [00:27:35] Speaker 00: Why isn't that the type of governmental authority the private non-delegation doctrine is concerned with? [00:27:41] Speaker 03: Reporting to a database? [00:27:43] Speaker 00: Reporting to the database that then every future employer is required to access. [00:27:47] Speaker 03: Well, Your Honor, because there's any number of information provided by third parties housed in databases, and there's no private non-delegation problem when that information is housed in a database that can be consulted later. [00:28:08] Speaker 02: If an individual complains that the test that he took was improperly conducted, does the FAA hear such complaints? [00:28:24] Speaker 03: I think the way that that, for instance, a positive drug test, is that what you're, a positive drug test would be reported in much the same way to the drug abatement division, and they would evaluate the circumstances around the positive drug test as it did here. [00:28:40] Speaker 02: You can challenge the results of a test conducted by the employer. [00:28:47] Speaker 03: Your honor, the point of the drug testing is not to determine whether it is not for some sort of governmental determination about the results of a drug test. [00:29:04] Speaker 03: It is in furtherance of FAA's maintenance of standards for those who hold airman certificates. [00:29:11] Speaker 02: Do you understand my question? [00:29:13] Speaker 02: My question is whether if an employer conducts a drug test and it comes out positive and the airman or the pilot says the drug test wasn't properly conducted, does the FAA review that? [00:29:31] Speaker 03: In much the same way it does here. [00:29:32] Speaker 02: The way it did here, it didn't review whether there was a refusal or not. [00:29:38] Speaker 03: Yes, your honor, it reviewed the circumstances surrounding the refusal to determine whether to take action against its certificate. [00:29:46] Speaker 03: FAA is not in the business of conducting drug tests or, I mean, that is not the governmental action at issue. [00:29:52] Speaker 03: FAA determines whether airmen can continue to hold air certificates. [00:29:56] Speaker 03: So in that instance, [00:29:57] Speaker 03: FAA would make a determination about whether the circumstances surrounding the positive drug test warranted legal action against the certificates. [00:30:06] Speaker 03: They decided to revoke the certificate because of the positive drug test. [00:30:11] Speaker 03: And the airman did not satisfy the FAA that the drug test, the positive drug test did not indicate that he was unsafe or unqualified to hold an airman certificate. [00:30:24] Speaker 03: The airman certificate could be revoked or suspended. [00:30:27] Speaker 03: And as you noted earlier, that action is reviewable by the NTSB. [00:30:35] Speaker 04: And what do you consider the no enforcement action to be beneficial to him, as you all have indicated? [00:30:45] Speaker 03: Because he still holds his airman certificate. [00:30:48] Speaker 03: And as soon as he completes the return to duty requirements, he can continue to fly. [00:30:54] Speaker 04: And then do you see a distinction between incomplete drug testing process versus refusal to take a test? [00:31:03] Speaker 04: I'm sorry, Your Honor. [00:31:04] Speaker 04: Do you see a distinction between an incomplete drug testing process versus refusal to take? [00:31:12] Speaker 04: Because it just sounds like there's some intentionality in refusal versus incomplete process. [00:31:20] Speaker 03: I think the regulations would describe all of those as a refusal to test. [00:31:26] Speaker 03: And then that triggers the need to test under the supervision of a substance abuse professional and complete any required counseling. [00:31:37] Speaker 03: But the regulations define what is a refusal to test in those circumstances. [00:31:43] Speaker 03: And there are lots of different [00:31:45] Speaker 03: different facts that can trigger a refusal to test that then requires follow up. [00:31:50] Speaker 04: And based on your arguments, you make it sound like why are we here? [00:31:54] Speaker 04: All he needs to do is go take the test and all this is over. [00:31:56] Speaker 03: That's right, Your Honor. [00:31:58] Speaker 03: If he completes the return to duty requirements, I think Judge Garcia asked earlier, and while it's not in the record, my understanding is return to duty can be completed in an afternoon or a day. [00:32:10] Speaker 03: It could be longer if the substance abuse professional determines that there is a problem that needs additional counseling or follow-up. [00:32:21] Speaker 00: So I don't know if that could happen. [00:32:24] Speaker 00: When I read the regulations, they're quite detailed. [00:32:27] Speaker 00: You go meet with somebody, they come up with a treatment plan. [00:32:29] Speaker 00: You meet again and again and again, and then you have to get their sign off. [00:32:35] Speaker 00: So from one perspective, that's kind of compounding the non-delegation problem. [00:32:40] Speaker 00: You already had one private entity, and now you're subject to the unreviewable discretion of another private person about when you get to fly a plane again. [00:32:49] Speaker 00: If it always took a [00:32:52] Speaker 00: Maybe there's a de minimis exception to private non-delegation if it just takes an afternoon, but we don't really have a record about that, do we? [00:33:02] Speaker 00: about how long this return to duty process is. [00:33:04] Speaker 03: No, Your Honor. [00:33:05] Speaker 03: And there is nothing in the record about the return to duty process because Mr. Paul hasn't completed it. [00:33:13] Speaker 00: How would he do that? [00:33:14] Speaker 00: So normally the employer finds the SAP, but this employer used this as an excuse to fire him right away. [00:33:21] Speaker 00: And gave him information. [00:33:23] Speaker 00: He goes to an independent SAP. [00:33:27] Speaker 03: I believe in this instance, he was given information about substance abuse professional, so he has that information available. [00:33:37] Speaker 03: But yes, Your Honor, from our perspective, [00:33:42] Speaker 03: The only enforcement action possible against him was rendered in his favor. [00:33:52] Speaker 03: And all he needs to do is complete the return to duty requirements, which are just of a piece with the random drug testing requirements and other requirements to perform safety-sensitive functions. [00:34:04] Speaker 03: And those make sense before we're elected. [00:34:06] Speaker 04: It's not just taking the test. [00:34:08] Speaker 04: It's all this other stuff. [00:34:09] Speaker 03: Well, the return to duty requirements may be as simple as meeting with a substance abuse professional and explaining the circumstances and proving that you're safe to fly. [00:34:18] Speaker 03: They could be longer if the substance abuse professional determines that they need to do additional steps before resuming safety sensitive functions. [00:34:29] Speaker 03: But in the same way that FAA sensibly requires random drug testing, it requires this follow up step. [00:34:40] Speaker 03: All right, thank you. [00:34:41] Speaker 03: No further questions. [00:34:42] Speaker 03: We ask that the review be denied. [00:34:44] Speaker 04: We've a letter you 2 minutes from rebuttal. [00:35:01] Speaker 05: Thank you, Your Honours. [00:35:03] Speaker 05: I will keep this very brief. [00:35:05] Speaker 05: First, just to confirm, Mr. Paul was not interviewed as part of the FAA's investigation of the other report. [00:35:17] Speaker 05: Secondly, I do want to clarify that even when a pilot does... Did he file a brief or a memorandum or anything? [00:35:28] Speaker 05: Did he file, pardon me? [00:35:30] Speaker 02: Did he, did he file anything? [00:35:32] Speaker 05: He, um, Mr. Paul, um, both through his own counsel, um, early in the process after he receded letter of investigation, uh, did, um, submit a letter to the, um, to the FAA. [00:35:45] Speaker 05: And then subsequently in June of last year, um, submitted a separate letter on his, under his own signature. [00:35:51] Speaker 05: Okay. [00:35:54] Speaker 05: And I also additionally just wanted to clarify that even when a pilot does complete the returns of duty process, and it's our understanding that Mr. Paul had completed that at some time during last year. [00:36:11] Speaker 05: And we are happy to provide supplemental information to the court if you're interested to verify that. [00:36:19] Speaker 05: But even with that, [00:36:22] Speaker 05: The he still cannot hold a first class medical certificate because a drug test refusal is regarded as a substance abuse by substance abuse problem. [00:36:34] Speaker 05: And so under 14 CFR 67107 B2. [00:36:40] Speaker 05: He can't hold this for two years. [00:36:42] Speaker 05: So it's not simply a matter of, oh, complete the paternity process and you're back to work. [00:36:48] Speaker 05: It's far from it. [00:36:48] Speaker 00: He's got a two-year time horizon between the... There's no citation for this, but on page 30 of the FA's brief, they say, if you just go ahead and apply for a new medical certificate, in that context, he can contest the employer's report of a refusal. [00:37:10] Speaker 00: Do you understand that to be correct? [00:37:12] Speaker 05: I understand that if he was seeking a special issuance, that he might be able to raise issues regarding the test report. [00:37:25] Speaker 05: I think that that doesn't necessarily. [00:37:29] Speaker 05: The timeline for a special issuance is very indeterminate. [00:37:34] Speaker 05: It could be short. [00:37:35] Speaker 05: It could be probably much more likely a fairly lengthy period. [00:37:39] Speaker 05: And that still does not resolve the issue of the permanent black mark on his record in the pilot records database. [00:37:48] Speaker 05: And I think that concludes my rebuttal, unless the court has any further questions for me. [00:37:58] Speaker 04: Thank you.