in addition to our usual role against your photograph thing of videotaping or recording these proceedings i would we will give you five minutes of uninterrupted argument  or is that the there is no explanation as to why mr stillman to receive what's called the l a law is a letter of investigation now that not to be confused with  maule was was investigated and so when you get a letter investigation you still have your rights to a hearing and due process and that usually occurs through the and she's a charge of these regulations so in a way this is it the beginning we thought he had his right to hear before they take the next normal step of assigning just retired it's not important but i just mentioned it which basically says that stevens so that's really whether as a factor and not the point is d that's what he determine how he did that we have a new idea because we don't really have a right for a hearing about it so this  procedure i just mentioned it failed and by failing to provide a stimulus of any reason decisionmaking because all we got from the federal reserve who was is revoked he didn't even say why he doesn't list the facts and so we don't know and now because he did that we don't really have the administrative procedure act right  some action i would care so i don't really understand why he wouldn't care or that even if he doesn't think it's going to take away his license he thinks they're going to do something to him and he didn't think he did anything wrong why would he respond shocking that you would get a letter saying you didn't do something you were supposed to do when you think you did do it and you would just sit there before two months and say nothing stevens the reg says refusal to take a drug test is a violation there is something in the investigation report that says at least one of the ladies at north supposedly informed stevens when he was leaving the facility that that would be counted as a refusal personally i find it very hard to believe that any certified pilot is unaware of about at this point and i'm giving you one more chance to answer my question because i'm trying to be friendly well a new regulation governs your claim that in the process of getting the facts ready for that but that the underlying test that you have assigned to a regulation i think that's the crux of the question you know it being in the brief maybe i i just wanted was explaining to him the only unused fifteen minutes when this runs out i'm sorry i'm not trying to interfere with you j but you're interested in is regulation that we were concerned about yes we were concerned about is the fact that this all took place at a drug collection facility called words and this is not so we were looking for whatever facts they were going to argue fish simply told us about the fact that he may have done these things wrong way left the left the laboratory and so forth or when he's standing right in front of  drug test and he was required to do that because he was employed as it was seeking employment at a different company as a part of the pilot for an air carrier because that is the position with critical safety implication it is covered by an f a mandated drug testing program and as you referenced joyce jones the pilots are the pilots are indeed required to know the drug testing regulations and the other regulations that they operate under and they're also provided with training  the companies the f a a requires them to provide that training recording the drug testing program in october of two thousand and nineteen position or a peer to for one of the it require drug tested he started the test and he left without having completed the test for all the specific factual allegations that are made in petitioners briefs none of those underlying facts are disputed he was required to take a test he started taking the tab and he left without having finished taking the test based on that undisputed evidence following an f a a investigation the federal air search and concluded that petitioner had in fact refused a drug test the decision that withdrawal  petitioner was required to take a drug test and did not actually take the drugs as he was required to take that evidence is more than substantial and accordingly this request this court denied the petition additionally petitioner refusal of a drug test meant that public safety warrants it but withdraw all a regulatory exemption that had been issued to the petitioner petitioner needed this regulatory exemption because as my colleague across the aisle undisputed here that the petitioner didn't meet those requirements but the federal air surgeon has the discretion to issue a regulatory exemption to allow pilots to fly despite a lack of qualifications so long as for the specialist events of an airman medical certificate they have conditions of limitations on them usually related to monitoring and testing and just that the federal air surgeon has discretion to issue these exemptions you have discretion to withdraw them t required drug or alcohol test is that disqualifying medical condition of substance abuse that as expressed in the preamble to that regulation the purpose of that is to sew up including a refusal and that is that that is the only way that the f a a has of ensuring that someone is safe before they might be able to go back to flying again because of course when someone is refused a drug test now we don't have that  regularly requires notification that notification goes the drug basement division i would note for the sake of clarity the drug abuse and division is part of the office of aerospace medicine which is headed by the federal air surgeon so it's actually n  established a set of circumstances under which you get a hearing if an individual has is applying for a certificate or we are group voting a certificate which would include an unrestricted ehrman medical certificate then there are entire formal hearing on the record before an administrative law judge of the national transportation safety board but that process that congress laid out is specifically limited to the question of whether or not the person meets the qualifications for their certificate it doesn't apply to situations like this where we know a person isn't qualified and the question is whether or not there's going to be an exercise about he claimed that yes he did give the sufficient urine sample and was told everything was fine and allowed to leave and then they made up this story i'm again i'm not saying that happened here this is just a hypothetical what if they just didn't like him made up a story and here we are how does it prove that well you have in this case there were multiple instances where petitioner could have submitted information as we've discussed or already he received a letter of investigation that is the primary opportunity for him to provide information it's pacifically puts him on notice of what he's being invested or this reporter refusal on this given that is the primary place you could submit documents you could have an interview you could call us you could act by the surgeon and that causes it to deviate from the more specific hearing requirements and number two what about the fact  and that well and maybe number three is that his lawyer did in fact seek an opportunity or more formal inquiry after they were after they received a letter from the surgeon and the surgeon say something like we and we invite you or we will give you a chance to respond or something like that in there and they tried without success sure yes it's the limitation on the jurisdiction about what what goes before the n t s b for a hearing is in the statute i believe it's four horsemen of three if i'm mistaken about when we are either if we deny an application or if we are taking away a certificate how that goes in front of the accuracy but that the i'm so i apologize your honor i've walked the beat on your nd question well i was just observing that something in the investigative record that that he had in fact attempted to heard had set that's ultimately that's not relevant you get one chance to want to take one of these drugs has if you walk out in the middle of a drug test you are not permitted to just do it different drugs and later usually it's actually fairly common for people  or perhaps having consumed a large quantity of water so that they provided the loot sample later in the day that will produce a negative and bad so there are there are testing integrity reasons why you can't allow  people are not allowed to come back in and try again outside of the strictures of the regulations which are you would you could say you attempt to provide a sample if you're unable to provide a sample it starts this three hours five bladder period during which you are allowed to drink more water or not is a limitation on how much you can drink so it doesn't dilute the sample but when you can drink more water if you still are unable to provide a sample after three hours there is a process for medical the things i did want to note this was raised in petitioners reply brief and then here today was the suggestion that yellow i did not put him on sufficient notice of the nature of this  matter it specifically in this case i think that's generally incorrect but specifically in this case i would note that after retaining an attorney petitioner didn't respond to drive the bateman letter of investigation but they did submit he did submit a letter of representation to the office of aerospace medicine to a separate part the our medical certification division that is in the record at r one o one it's not in the joint appendix that you have i didn't have a reason to cite it in the response three so it's not in the joint plan next i can file a supplemental conduct with the courts interested and of course if the court read requests the entire record you would receive that ben but that's significant because it shows that the petitioner was well aware that there were medical implications of this to specifically file something and you can tell from that page number that document doesn't appear in the investigative report it appears in his normal human medical file which is the part of the record after page starting on page seventy nine so the when did that letter come before or after the  opportunity that there's her hat you just heard so cheers and you provide information to the federal air surgeon ok well let me step back just a nd because you cited the statutory authority for required if there's not a hearing required no your honor but so as to the statute the statutes the start who's setting out the n t s b has jurisdiction is specifically to determine whether or not the person is qualified to hold the certificate in this case that's not an issue because the petitioner and often that i understand the limits of what you're saying in that hearing is a bad but this has to do with what kind of  of that here i i do know that other circuit courts have this is up to the best of my knowledge this is the st time anyone has argued that the process requires its hearing before the withdrawal of a special  issuance but there have been occasions where individuals have previously gone to circuit court arguing that they were entitled to a hearing for the on of the beginning when the settlers urge an exercise discretion as to whether or not to issue an authorization in the st place that the  provide a formal hearing on the record before that again we needed to provide them with notice and an opportunity to be heard that was provided here including as your honor referenced the letter that in the briefs about whether or not reconsideration was sought but there's no dispute that again the petitioner chose not to submit any additional information about what happened the petitioner doesn't have to respond to us but the petitioner was given a meaningful opportunity to be heard and chose not to take it  so in this case it remains undisputed that petitioner was required to take a drug test that petitioner commenced the testing process and the petitioner then left without having completed a drug test and i think that partially emphasizes how this process already has given us the i mean you're given potentially meaningful opportunity to be heard even with the opportunity in this court to think that he's required as a pilot to know the effect of this leaving early thinking wasn't some mistake in thinking i can just come back later correct your honor as as referenced i did indeed even in petitioners initial pursuit it's a best practice for the collector to inform the of the pilar or other avenues being tested that leaving as a refusal that's not a requirement and part of the reason why that not a requirement because the pilot and the other avenue are covered by drug testing are required to know these regulations they're required to know that it's a refusal that's within the reputation contact that has been repeatedly litigated and upheld by the national transportation safety board after those formal hearing on the record for the where you have an unrestricted medical certificate or the pilot certificate is going away and you get additionally you can see evidence of this in the investigative report the position was provided with training by air carriers are required to provide training for these pilots and in this case provide that training you can see the training you can see and acknowledge and form from the petitioner so the federal air refusal it's difficult to see what reasonable action the federal air surgeon could have taken other than withdrawing the medical exemption that had previously been issued to the petition drug test he showed up he showed d up to try to get his medical certificate for employment with bristol he didn't have a job he wasn't flying at the top yet another job but he want to go back to fly he has to go he ended up with what's called the shah of bladder problem and if you look at this everything that the true or those did was here improperly violates part forty didn't follow the rules from patrice kelly about how to do it our experts have already looked at all this and determined all this we needed did your client know that at the time and he know that they  documentation after the fact of ministers the only thing we have in the administrators or in the entire record is big your client was favorably you was there for an hour and a half and then he walked out because he couldn't produce a sample lost your medical what does that medical on his head or any doubt that he knew when he left they had not completed the testing whatever the merits of that shot bladder or otherwise with circuits that upheld that no hearing is required for a discretionary license matter well this is not really a discretionary lies as matter because the f a a is procedure  hearing is not required from the not all of the withdrawal of government benefits you know i mean this thing is we don't have a government benefit because issued which is where it would have come from but instead somehow the judge dr bailey issues this letter saying that he may have his mind that he had to have it be takes away the other other license we should have to do with anything