United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 22, 2010 Decided February 26, 2010 

No. 09-1139 

FRED LEROY PASTERNACK, 

PETITIONER

v. 

NATIONAL TRANSPORTATION SAFETY BOARD AND FEDERAL 

AVIATION ADMINISTRATION, 

RESPONDENTS

On Petition for Review of an Order 

of the National Transportation Safety Board 

Kathleen A. Yodice argued the cause and filed the briefs 

for petitioner. 

James F. Conneely, Attorney, Federal Aviation 

Administration, argued the cause and filed the brief for 

respondent. Susan Caron, Attorney, entered an appearance. 

Before: GINSBURG, BROWN, and KAVANAUGH, Circuit 

Judges. 

 Opinion for the Court filed by Circuit Judge

KAVANAUGH. 
2 

 KAVANAUGH, Circuit Judge: The Federal Aviation 

Administration revoked Fred Pasternack’s airman certificates 

on the ground that Pasternack refused to take a mandatory 

drug test. The National Transportation Safety Board upheld 

the revocation order. Because a key finding on which the 

Board relied was not supported by substantial evidence, we 

grant the petition, vacate the Board’s decision, and remand for 

further proceedings consistent with this opinion. 

I 

 Dr. Fred Pasternack was a part-time pilot with 

Northeastern Aviation. In June 2007, Northeastern notified 

him that he had been randomly selected for drug testing; such 

random drug testing was required by Department of 

Transportation regulations. Pasternack reported to a LabCorp 

collection site but was unable to provide a sufficient quantity 

of urine for the test. This is not an uncommon occurrence, 

and for such situations, the Department has adopted “shy 

bladder” procedures. See 49 C.F.R. § 40.193. Under the 

regulations, Pasternack was required to remain at the 

collection site for three hours or until he provided a sufficient 

specimen. See id. The collector, Theresa Montalvo, told 

Pasternack to remain in the waiting room until he could 

provide another specimen. Pasternack apparently had a 

scheduled business-related meeting and told Montalvo he 

needed to leave the collection site. He left and returned a few 

hours later, at which time he provided a sample that tested 

negative for drugs. Pasternack claimed to have left the 

collection site with Montalvo’s acquiescence after spending 

several minutes in the waiting room. See Transcript of NTSB 

Hearing at 424-26, Adm’r v. Pasternack, Docket No. SE18133 (July 30-31, 2008) (Hearing Tr.) (J.A. 281-83). 

Montalvo, however, testified that Pasternack “rushed out of 

the facility” while she was attempting to explain the 
3 

collection procedures to him. Id. at 78 (J.A. 68). Although 

Montalvo herself apparently did not view Pasternack’s 

departure as a refusal to take the test (given that she allowed 

him to take the test when he returned), a medical review 

officer concluded that Pasternack’s failure to remain at the 

testing site meant that he had technically refused a drug test 

for purposes of the Department of Transportation regulation. 

Id. at 120 (J.A. 100); see 49 C.F.R. § 40.191(a)(2). The 

penalty for refusing to take a test is naturally harsh: The 

Federal Aviation Administration issued an emergency order 

revoking Pasternack’s airline transport pilot and flight 

instructor certificate and his ground instructor certificate. 

 Pasternack appealed the FAA’s order to the National 

Transportation Safety Board. The case was initially heard by 

an Administrative Law Judge, who affirmed the revocation 

order. The Board, in turn, affirmed the ALJ’s decision. See

Adm’r v. Pasternack, NTSB Order No. EA-5443 (Apr. 27, 

2009) (J.A. 394). 

As an initial matter, the Board observed that Pasternack’s 

undisputed conduct – the fact he had “left the test site without 

providing an adequate urine sample and before the testing 

process had been completed” – qualified as a refusal under the 

plain language of § 40.191(a)(2). Id. at 11 (J.A. 404). The 

Board then considered Pasternack’s “exculpatory 

justifications for his refusal,” including his claim that no one 

told him leaving would constitute a refusal. Id. at 12 (J.A. 

405). The Board rejected that claim, finding that the ALJ had 

made an “implicit . . . credibility determination” against 

Pasternack and that “the preponderance of the 

evidence . . . demonstrates that [Pasternack]’s own behavior at 

LabCorp precluded the LabCorp test administrator from 

explaining . . . that [Pasternack’s] departure from the 

facility . . . would constitute a refusal.” Id.
4 

 Pasternack petitioned this Court for review of the Board’s 

decision pursuant to 49 U.S.C. § 1153. He contends, among 

other things, that the Board erred in finding that his conduct 

amounted to a refusal of a drug test.1

II 

 We review NTSB decisions under the arbitrary and 

capricious standard and treat the Board’s factual findings as 

“conclusive” if they are supported by substantial evidence. 

See 5 U.S.C. § 706(2)(A); 49 U.S.C. § 46110(c); Garvey v. 

NTSB, 190 F.3d 571, 577 (D.C. Cir. 1999). However, “we 

may uphold agency orders based only on reasoning that is 

fairly stated by the agency in the order under review.” Casino 

Airlines, Inc. v. NTSB, 439 F.3d 715, 717 (D.C. Cir. 2006) 

(quoting Williams Gas Processing–Gulf Coast Co. v. FERC, 

373 F.3d 1335, 1345 (D.C. Cir. 2004)); see SEC v. Chenery 

Corp., 332 U.S. 194, 196 (1947). Therefore, “[i]f there is no 

substantial evidence to support the Board’s reasoning . . . its 

order must be vacated.” Van Dyke v. NTSB, 286 F.3d 594, 

598 (D.C. Cir. 2002). 

It is undisputed that Montalvo, the collector in this case, 

did not advise Pasternack that his departure from the testing 

facility would be deemed a refusal. See Hearing Tr. at 79 

(J.A. 69).2

 According to Pasternack, if he had been told that 

 1

 Pasternack also contends that he was not eligible for random 

drug testing in June 2007 because he was “not current or qualified 

to perform as a pilot.” Pasternack Br. at 3; see 14 C.F.R. § 

120.105. Because we vacate the NTSB’s decision on other 

grounds, we need not consider that argument. 

2

 The Department of Transportation’s Urine Specimen 

Collection Guidelines instructed collectors to give that warning. 

See OFFICE OF DRUG & ALCOHOL POLICY & COMPLIANCE, U.S.
5 

his leaving would constitute a refusal, he “would have 

remained at the site.” Id. at 442-43 (J.A. 292-93). Pasternack 

contended that the fact he was not told the consequences of 

his leaving for a few hours qualified as an “exculpatory 

justification” for his actions. The Board rejected that 

justification on the ground that Pasternack’s “own 

behavior . . . precluded” Montalvo from telling him that his 

departure would constitute a refusal. The Board also invoked 

the ALJ’s “implicit . . . credibility determination” against 

Pasternack and in favor of Montalvo. Pasternack, NTSB 

Order No. EA-5443, at 12 (J.A. 405). 

In our view, the Board’s reasoning on this point was not 

supported by substantial evidence. To be sure, we must 

respect “reasonable credibility determinations” of the ALJ 

that have been “expressly approved” by the Board. 

Throckmorton v. NTSB, 963 F.2d 441, 444 (D.C. Cir. 1992). 

In this case, however, the ALJ made no credibility 

determination – express or implied – with respect to 

Montalvo’s assertion that she didn’t have an opportunity to 

fully explain the “shy bladder” collection procedures to 

Pasternack before he left the facility. Hearing Tr. at 78 (J.A. 

68). The ALJ’s findings of fact simply did not address that 

factual issue. 

 

DEP’T OF TRANSP., URINE SPECIMEN COLLECTION GUIDELINES 18, 

20 (2006) (“when the employee does not provide a sufficient 

amount of urine,” the collector “must specifically tell the employee 

that he or she is not permitted to leave the collection site and if they 

do so, that it will be considered a refusal to test”). Department of 

Transportation regulations provide that a “collector in the DOT 

drug testing program . . . must be knowledgeable about . . . the 

current ‘DOT Urine Specimen Collection Procedures Guidelines.’” 

49 C.F.R. § 40.33(a). 
6 

Moreover, even assuming the ALJ had made a credibility 

determination that Montalvo’s testimony was entirely truthful 

and accurate, it still would not support the Board’s conclusion 

that Montalvo was “precluded” from telling Pasternack the 

consequences of his leaving. On the contrary, even if 

Pasternack left the facility in a rushed manner, it is utterly 

implausible that Montalvo had no opportunity to tell 

Pasternack that his leaving would be deemed a refusal. At 

oral argument before this Court, the Government’s counsel 

acknowledged that it would have taken no more than a few 

seconds for Montalvo to convey that crucial piece of 

information. See Tr. of Oral Arg. at 17-18. After all, how 

long would it have taken to say, “If you leave, that will 

constitute a refusal to test”? Moreover, Montalvo herself 

testified that after Pasternack said he needed to leave, she had 

an opportunity to tell him she would have to notify his 

employer, and that Pasternack heard and responded to that 

statement. Id. at 63-64 (J.A. 57-58).3

 Yet Montalvo did not 

take advantage of that opportunity to give Pasternack the far 

more important warning that his leaving would constitute a 

refusal. In light of Montalvo’s own testimony, no substantial 

evidence supports the Board’s conclusion that Pasternack’s 

behavior “precluded” Montalvo from informing him that his 

leaving would be considered a refusal. 

Because the Board expressly relied on its finding that 

Montalvo was “precluded” from warning Pasternack that his 

 3

 The Board stated, in summarizing the evidence, that in order 

to convey this information, Montalvo “called after” Pasternack “as 

[he] was leaving.” Pasternack, NTSB Order No. EA-5443, at 6 

(J.A. 399). Montalvo, however, did not testify that she had to “call 

after” Pasternack. See Hearing Tr. at 63-64 (J.A. 57-58) (“A. He 

grabbed his ID. And I told him I would have to notify the 

employer. Q. What was his response to that? A. He said, fine. Q. 

And what happened after that? A. He walked out.”). 
7 

leaving would constitute a refusal and because that finding is 

not supported by substantial evidence, we must vacate the 

Board’s decision.4 In so doing, we do not purport to say that 

the Board was required to consider Pasternack’s “exculpatory 

justification”; it may be that 49 C.F.R. § 40.191(a)(2) is a 

strict liability provision. But the Board having entertained 

Pasternack’s “exculpatory justification,” and having rejected 

it on a ground not supported by substantial evidence, we are 

constrained to vacate the Board’s decision. See Chenery, 332 

U.S. at 196. 

* * * 

 We grant Pasternack’s petition, vacate the Board’s 

decision, and remand to the Board for further proceedings 

consistent with this opinion. 

So ordered. 

 4

 The FAA suggests that the Collection Guidelines may not 

have been binding on Montalvo because they did not appear in the 

regulations themselves. See FAA Br. at 40. The FAA also 

contends that because he had been trained as a medical review 

officer, Pasternack “should have been familiar with the requirement 

that an employee may not leave the collection site during a random 

drug test.” Id. at 40 n.37. We cannot deny the petition on those 

grounds: Under “well-established Chenery principles,” we cannot 

uphold the Board’s decision on a basis not relied upon by the 

Board. Chirino v. NTSB, 849 F.2d 1525, 1532 n.10 (D.C. Cir. 

1988).