# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 13, 2021 Decided May 10, 2022

No. 21-1062

Y DIL W. P HAM

,

P ETITIONER

v.

N ATIONAL T RANSPORTATION S AFETY B OARD AND F EDERAL
A VIATION A DMINISTRATION

, R ESPONDENTS

Consolidated with No. 21-1083

On Petitions for Review of a Decision of the National Transportation Safety Board

Alan Armstrong argued the cause and filed the briefs for petitioner/cro ss-respondent.

Joshua M. Koppel , Attorney, U.S. Department of Justice, argued the cause for respondents/ cross-petitioners. With him

on the briefs were Brian M. Boynton , Acting Assistant Attorney General, Abby C. Wright , Attorney, Cynthia A.

Dominik , Assistant Chief Counsel for Enforcement, Federal2

Aviation Administration, and Agnes M. Rodriguez and Casey

Gardner , Attorneys.

Before: S RINIVASAN

, Chief Judge , R OGERS and J ACKSON *

, Circuit Judges

.

Opinion for the Court by Circuit Judge R OGERS

.

R OGERS

, Circuit Judge : Ydil Pham and the Federal Aviation Administration both petition for review of the National Transportation Safety Board’s suspension of Pham’s pilot and medical certi ficates for 180 days. Pham contends that the Board erred in concluding that he refused a drug test when

he left the test cente r before providing th e requisite amount ofurine because (1) he was not told he could drink water (a “shybladder” warning), as required by regulation, (2) he was given permission to leave, and (3) hi s urine sample was unlawfully

discarded. He also contends that the Board impermissibly applied a strict-liability sta ndard. The FAA objects by crosspetition to the Board’s decision to suspend rather than revoke

Pham’s certificates as the FAA ordered, contending that (1) the Board is obligated to defe r to the FAA’s guidance and interpretations of its regulations , (2) those regulations require

revocation of medical certificates for at least 2 years after a refusal to test, and (3) the Boar d deviated from its precedent without explanation. For the following reasons, the court denies Pham’s petition and gran ts the FAA’s cross-petition.

I.

The FAA is authorized to i ssue “airman certificates,” which permit individuals to enga ge in a range of activities

related to aviation. 49 U. S.C. §§ 44702(a), 40102(a)(8),

* Circuit Judge Jackson was a member of the panel at the time the case was argued but did not par ticipate in this opinion.3

44711(a). Pursuant to this author ity, it issues six types of pilot certificates. 14 C.F.R. § 61.5(a) . Among other requirements, pilots must be “physically ab le” to perform their duties, 49

U.S.C

. § 44703(a), and must obtain a “medical certificate” certifying their physical fitness to pilot planes as measured against specific criteria, see 14 C.F.R. § 61.23 and pt. 67.

The FAA is also required to establish a program for “preemployment, reasonable suspicion, random, and postaccident testing of airmen . . . for use of a controlled substance.” 49 U.S.C. § 45102. FAA regulations require that each test subject provide at least 45 milliliters of urine for a drug test. 49 C.F.R. § 40.65(a). If the test subject fails to do so, the collector mu st follow “shy-bladder” procedures, under which the collector must discard the specimen and “[u]rge the [subject] to drink up to 40 ounces of fluid.” Id. § 40.193(b). If the subject leaves the test center before the collection is completed, the departure is deemed a refusal to test. Id. § 40.191(a)(2).

Further, the FAA may revoke certif icates if it “decides . . . that safety in air commerce or air transportation and the public interest require that action.” 49 U.S.C. § 44709(b)(1)(A). “Refusal . . . to take a [require d] drug or alcohol test . . . is grounds for . . . [s]uspension or revocation” of a pilot certificate, 14 C.F.R. § 120.11, and disqualifies the pilot from holding any of the three classes of medical certificate for two years from the refusal to test, id. §§ 67.107(b)(2), 67.207(b)(2), 67.307(b)(2). Adversely affected individuals may appeal an FAA order to the National Transportation Safety Board (hereinafter, the “Board”) . 49 U.S.C. § 44709(d).4

II.

In August 2020, Pham, an expe rienced airline pilot, interviewed for a job with Private Jets. As a condition of employment, he was required to take a pre-employment drug test. Upon arrival at the test center, the test collector, Lois West, explained the testing proce dures, including that he would need to produce a urine sample. Pham began the testing procedures but did not provide the required 45-milliliter urine sample, see 49 C.F.R. § 40.65(a), and left the test center. West reported Pham’s refusal to test to Private Jets’ drug testing manager, Cindy Boone, who, pursuant to FAA guidance, see FAA Drug and Alcohol Complia nce Enforcement Inspector Handbook, FAA Order 9120.1D, at 43 (Aug. 9, 2018), notified the FAA that Pham had refused a drug test.

On November 5, 2020, the F AA issued an emergency order revoking Pham’s airline tran sport pilot cert ificate and his

airman medical certificates. Emergency Order of Revocation, FAA Case No. 2020 WA 910339 (N ov. 5, 2020) (hereinafter, the “Revocation Order”). The Revocation Order stated that

Pham’s failure to remain at th e test center until the collection process was completed constituted, pursuant to 49 C.F.R. § 40.191(a)(2), a refusal to submit to a required drug test, Revocation Order at 2, and that Pham, therefore, “lack[ed] the qualifications necessary to hold [an airline transport pilot certificate] and any class of airman medical certificate,” id. at
3. The revocations were ma de effective immediately, id. at 3, because Pham’s “refusal to submit to FAA-required drug testing demonstrates that [he] . . . lack[s] the degree of care, judgment, and responsibility required of the holder of a pilot certificate and any class of airman medical certificate,” id. at 4. Pham appealed to the Board.5

Before an administr ative law judge (“AL J”) for the Board, West testified that Pham had pr ovided an insufficient urine sample and had told her that he was unable to stay at the test center any longer. See NTSB Hearing Tr. (Nov. 23–24, 2020)

at 19–20. West also testified th at she informed Pham that leaving before the test collection process was completed would

be considered a refusal to take a test. Id. at 20. West denied giving Pham permission to leav e the test center and testified that she had told Pham that “he would have to get a whole new form from [his] job” after l eaving because, once she indicated a refusal on his testing form, she could not use that form again.

Id. at 21. Although West could not recall whether she informed Pham about the shy-bladder procedure, she noted that she was

trained to do so. Id . at 20, 39. West furthe r testified that after Pham left, she contacted Boone to notify her of Pham’s failure to complete the test. Id. at 33–34. Boone’s testimony

confirmed that West told her that Pham left the test center before completing his drug test , although West had warned him that leaving would be considered a refusal. Id. at 61. Boone reported Pham to the FAA, she explained, because she is required to report any refu sal of a drug test. Id. at 62–63.

Pham admitted in his testim ony that the urine sample he produced was deemed insufficient, id. at 111, and claimed that

when he asked West if he could go to lunch and come back to finish the test, she gr anted him permission to do so, stating that Private Jets could send a new application if Pham returned, id.

at 112. Pham testified that West neither gave him shy-bladder

instructions nor told him that leaving the test center would be deemed a refusal, claiming that he would not have left the

center had he been so informed. Id. at 113–14.

The ALJ found that West’s testimony was “very credible as to advising [Pham] that” l eaving the test center before completing the testing process “was a refusal,” id. at 158,6

noting that her testimony was corroborated by paperwork she had filled out the day the test began, id. at 157, Exh. A-2. By contrast, the ALJ found Pham’s testimony was unpersuasive, because as an air transport pilot, Pham was held to a “higher

standard” and should have known the relevant regulations. Id. at 158. The ALJ specifically f ound that Pham (1 ) had provided a urine sample that was “insufficient” in volume; (2) “was advised that [leaving the test center] constituted a refusal”; and (3) “was advised that, if he left , he would have to have another

confirmation form when he returned.” Id. at 159. Therefore,

the ALJ concluded that the FAA had proven a violation of its drug-testing regulations and affirmed the FAA’s revocation of

Pham’s certificates. Id. at 159–61.

Pham appealed the ALJ’s initial decision to the Board. The Board deferred to the ALJ’s credibility determinations, Opinion and Order, NTSB Order No. EA-5889, at 17–21 (Jan. 4, 2021) (hereinafter, the “NTSB Order”), and affirmed the ALJ’s determination that Pham had refused a drug test, id. at 21–25. In response to Pham’s argum ent that he did not receive a shy-bladder warning as 49 C.F.R. § 40.193(b) required, the Board observed that “West explai ned the most important part: leaving before providing an adequate sample constitutes a

refusal.” Id. at 25. The Board also rejected Pham’s argument that the ALJ had improperly applie d a strict-liability standard, finding that the ALJ “considered the witnesses’ testimonies,

assessed the witnesses’ credibil ity, reviewed the exhibits, and weighed the partie s’ arguments.” Id. at 28. Further, it rejected Pham’s argument that discar ding his sample constituted spoliation of evidence, inasmuch as Pham was sanctioned because he left the test center, not because his sample tested positive. Id. at 29. The Board sua sponte reviewed the FAA’s

revocation sanction and reduced it to a 180-day suspension, identifying two “mitigating factors.” Id. at 31–32. First, there

was no clear evidence that Pham was informed he could drink7

water to produce another sample. Id. at 31. Second, Pham could have been confused by Wes t’s statement that he would need a new form if he returned, because Pham may have interpreted that as a suggestion that a new test was possible. Id.

at 32.

Pham petitioned for review , and the FAA filed a crosspetition for review.

III.

The court must uphold the Boar d’s decision “unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ or ‘unsupported by substantial

evidence.’” Huerta v. Ducote , 792 F.3d 144, 153 (D.C. Cir. 2013) (quoting 5 U.S.C. § 706(2)(A ), (E)) (inter nal citations omitted). This court will “‘defe r to the wisdom of the agency, provided its decision is reas oned and rational . . . .’” Dillmon

v. NTSB , 588 F.3d 1085, 1089 (D.C . Cir. 2009) (quoting

Chritton v. NTSB , 888 F.2d 854, 856 (D.C. Cir. 1989)).

A.

Pham principally contends that the Board lacked

substantial evidence to conclude that he refused a drug test because he was not given a shy-bladder warning and was allegedly given permission to leave. He also contends that the sample collector “spoliated” evidence, Pham Br. 41, and that the Board applied a strict-liabi lity standard, both of which violated his constitutional rights. None of these challenges is persuasive.

Substantial evidence “is such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Chritton , 888 F.2d at 856 (internal citation and8

quotation marks omitted). The court must accept all “reasonable credibility determinations” made by the ALJ and approved by the Board. Dickson v. NTSB , 639 F.3d 539, 542 (D.C. Cir. 2011) (internal citation and quotation marks omitted). Here, the ALJ evaluate d the entire record as well as

various inconsistencies in te stimony. The ALJ reasonably

found that West was more credib le than Pham and concluded that, in violation of 49 C.F.R. § 40.191(a)(2), Pham had refused a drug test by failing to remain at the test center until the testing process was complete. NTSB Hearing Tr. (Nov. 23–24, 2020)

at 156–61. The Board stated that it deferred to the ALJ’s credibility findings and agreed that Pham had refused a drug

test. See NTSB Order at 1–2, 21. In addition to West’s testimony, other eviden ce adequately supports this finding. For example, the Custody and Contro l Form stated that Pham refused a drug test, id. at Exh. A-2, and West testified that the form reflected her recollection of events, id. at 28–29. Private Jets’ drug testing manager, Ci ndy Boone, testified about her telephone call with West as reflec ted in Boone’s email to the

FAA. Id. at 61, 64, Exh. R-6. And Pham admitted that he left the test center without providing a sufficient urine sample. Id.

at 117–18.

Undeterred, Pham contends th at the Board had no factual basis for its refusal finding becau se he did not receive the shybladder instructions required by 49 C.F.R. § 40.193(b)(2). The Board acknowledged that the reco rd was unclear but found that the test collector “explained the most important part: leaving before providing an adequate sa mple constitutes a refusal.” NTSB Order at 25. The Board reasonably concluded that because the sanction was premis ed on Pham leaving the test center before completing the testing process, see NTSB Hearing Tr. (Nov. 23–24, 2020) at 159–60 (citing 49 C.F.R. § 40.191(a)(2)), the coll ector’s failure to mention shy-bladder procedures was “not fatal to the [ALJ’s]9

determination” that Pham had refused a drug test, NTSB Order at 24. As to Pham’s testimony that the test collector gave him permission to leave when she sa id he would need a new form to return, the Board acknowledged that this statement might confuse a “reasonable person” by suggesting that a “new test was possible.” Id. at 25. But that confusion did not alter the fact that Pham was “notified [] th at if he left the facility, it would be a refusal,” id. at 22–23, yet still “left the testing facility without providing an adequate specimen and[,] therefore, violated the applicable regulation,” id. at 25. And contrary to Pham’s contenti on, there is no inconsistency between the ALJ’s finding that Pham was advised that his leaving the facility would constitute a refusal to test and the finding that Pham was advi sed he would need a new

confirmation form if he returned: the need for a new

confirmation form for a future test is fully consistent with treating a departure from the facility as a refusal to complete

the current test.

Pham contends that the claims against him should have been dismissed because the test collector disposed of his sample in violation of 49 C. F.R. § 821.19(c), and that although 49 C.F.R. § 40.193(b)(1) requires disposal of insufficient specimens, the provision is uncons titutional because it destroys exonerating evidence in violation of the Due Process Clause of

the Fifth Amendment. The Bo ard reasonably concluded there

was no violation of 49 C.F. R. § 821.19(c); the regulation prohibits disposal of specimens only when a judge orders production of the specimen or there is a timely request to preserve the sample, neither of which occurred here. NTSB

Order at 29. Pham’s constitutio nal objection is meritless; the urine sample could not have been exculpatory because the issue is not whether the sample was positive but whether Pham refused a test by leaving the test center before the process was10

complete. Id. In any event, Pham cites no precedent holding that disposal of an insufficient sample is unconstitutional.

Nor, contrary to Pham’s view , did the Board apply a strictliability rule in violation of its own precedent and the Due Process Clause. Rather, the Board noted that the ALJ

“considered the witnesses’ testim onies, assessed the witnesses’ credibility, reviewed the exhibi ts, and weighed the parties’ arguments,” id. at 28, and relied on ev idence that Pham was warned that leaving the test center before providing an adequate sample would constitute a refusal to test, id. at 25.

The court therefore denies Pham’s petition for review.

B.

In its cross-petition, the F AA contends that the Board acted contrary to law by re ducing Pham’s sanction from

revocation of his certificates to a 180-day suspension. In particular, the Board is required to defer to the FAA’s sanction determination if it is reasonable, but the Board did not exercise deference. Further, the FAA contends that the Board acted contrary to law by suspending Ph am’s medical certificates for 180 days because FAA regulations make Pham ineligible to hold such certificates for two y ears. The FAA contends that

the Board’s choice of sanc tion was also arbitrary and capricious because it deviated from Board precedent.

1.

The Federal Aviation Act, 49 U.S.C. §§ 40101 et seq

., creates a “‘split-enforcement’” regime in which the FAA has regulatory and enforcement authority, and the Board has adjudicatory authority. Garvey v. NTSB , 190 F.3d 571, 573 (D.C. Cir. 1999) (quoting Hinton v. NTSB , 57 F.3d 1144, 1147 n.1 (D.C. Cir. 1995)). In Martin v. Occupational Safety &11

Health Review Commission , 499 U.S. 144 (1991), the SupremeCourt held that the agency with adjudicative power in a splitenforcement regime would pl ay a role similar to a “ court in the agency-review context” and review the rulemaking agency’s interpretations of its rules “only for consistency with the regulatory language and for reasonableness.” Id. at 154–55. This court has similarly held th at the Board and the court “must defer to the FAA’s interpretations of its own aviation regulations.” Garvey , 190 F.3d at 577 (citing Martin , 499 U.S. at 147, 150–57). FAA guidance provides that revocation is an appropriate sanction for refusal to test. U.S. Department of Transportation, FAA Order 2150.3C, at 9-14, Fig. 9-5(11) (Sept. 18, 2018). So, the FAA contends that the Board improperly “substituted its own judgment for the [FAA’s]” inadjusting the sanction, exceeding its role in the splitenforcement regime. FAA Br. 38.

Pham’s case, however, differs from Martin to the extent

the FAA seeks deference to its a pplication of a policy statement that guides its enforcement discretion rather than an interpretation of its rule as in Martin , 499 U.S. at 148–49. Further, the rulemaking agency’s interpretation in Martin was issued as part of a formal citation against an employer. Id. at 157. “[L]ess formal means of interpreting regulations,” such as “enforcement guidelines,” are “entitled to some weight on judicial review” but “not entitle d to the same deference” as a

formal citation. Id . As such, the approach in Martin instructs deference to FAA’s enforcement guidelines and sanction

determination but does not specify the leve l of deference the Board owes. Still, the Suprem e Court has held that courts should overturn an agency’s c hoice of remedy only if it “is unwarranted in law or is without justification in fact.” American Power & Light Co. v. SEC , 329 U.S. 90, 112–13 (1946). Because the Board essentially acts as a court in the split-enforcement regime with the FAA, Martin , 499 U.S. at12

154, this standard guides the co urt’s review of the Board’s

sanction decision.

Although the Board states it de ferred to the FAA’s choice of sanction, see NTSB Order at 31, a nd lists two mitigating factors that may cast do ubt on the FAA’s sanction, id. at 31– 32, it adjusted the sanction without finding that the sanction is unwarranted in law or without ju stification in fact. 14 C.F.R. § 120.11 provides that a refusal to test is grounds for “revocation of any [airman] certificate,” and 14 C.F.R. §§ 67.107(b)(2), 67.207(b)(2), 67.307(b)(2) provide that a refusal to test in the prior tw o years disqualifi es a pilot from holding medical certificates. The FAA’s sanction had justification in fact, as the FAA found that Pham had been warned that leaving the test cen ter before providing a sufficient urine specimen would be considered a refusal to test but he left anyway. Revocation Order at 2. The FAA concluded this

demonstrated that Pham lacked “the degree of care, judgment, and responsibility required of a certificate holder.” Id. at 4. “Air safety depends on the willingness of certificate holders . . . [to submit] to drug tests,” and Pham’s refusal “betray[ed] the public trust.” Id. Pursuant to 49 U.S.C. § 44709(b)(1), the FAA can revoke certificates upon de termining that “safety in air commerce or air transporta tion and the public interest” require revocation.

The Board failed, however, to acknowledge the FAA’s policy rationale for revoking Pham ’s license or to explain why those reasons were inapplicable or unjustified in Pham’s case.

Pham’s reliance on the 2012 Pilo t’s Bill of Rights, which removed a statutory pr ovision requiring the Board to defer to the FAA’s interpretations of sanction guidance, Pub. L. 112- 153, § 2(c)(2), 126 Stat. 1159, 1161 (2012) (amending 49 U.S.C. § 44709(d)(3)), does not advance his challenge to the FAA’s cross-petition. Removing a provision that provided for13

deference is not the equivalent of enacting a cont rary provision disallowing deference, and Pham identifies no reason the court should read the removal of the prov ision in this si tuation as an attempt to preclude deference by th e Board. In fact, there is at least some indication in the legislative history that the provision was removed only because it was deemed superfluous in light of Martin

. See 158 Cong. Rec. S4733 (daily ed. June 29, 2012) (state ment of Sen. Rockefeller and concurrence of Sen. Inhofe); id. at H5102 (daily ed. July 23, 2012) (statement of Rep. Bucshon).

Pham’s position that FAA Order 2150.3C is invalid because it is a legislative rule promulgated without notice and comment and the FAA’s “enforcement practice [is] to always seek a revocation,” Pham Reply Br. 37, misrepresents FAA Order 2150.3C, which provides that refusal to test “generally,” but not categorically, warran ts revocation, FAA Order 2150.3C at 9-13, 9-14. This is a classic example of a policy statement that does not require notice and comment. 5 U.S.C. § 553(b);

see Syncor Int’l Corp. v. Shalala , 127 F.3d 90, 93–94 (D.C. Cir. 1997).

Because the Board’s decision did not accord appropriate deference, its modification of the FAA’s sanction, on the reasoning it offered, was contrary to law.

2.

The FAA’s challenge to the Board’s suspension of Pham’s medical certificates is persua sive. FAA regulations provide

that an airman who has refused a drug test in the preceding two years is automatically ineligible to hold a medical certificate. 14 C.F.R. §§ 67.107(b)(2), 67.207(b)(2), 67.307(b)(2); see also

id. §§ 67.101, 67.201, 67.301. Becaus e the Board lacks the authority to invalidate FAA regulations, see Adm’r v. Ewing , 114

N.T.S.B. 1192, 1194 (1971); see also Garvey v. Kraley , NTSB Order No. EA-4581, 1996 WL 785071, at *1 n.3 (Aug. 18, 1997) (citing Ewing , 1 N.T.S.B. at 1194) , it was required to apply the FAA’s medical certificate eligibility requirements. The Board’s Order is contrary to law insofar as it allows Pham

to hold medical certif icates between 180 days and 2 years after he refused a drug test.

The court need not address whether the Board’s decision to adjust the sanction deviated from Board precedent, because the court is instructing the Boar d on remand to manifest proper deference to the FAA’s sanction choice and review it only forjustification in law and fact. The Board’s role in the splitenforcement regime may require it to deviate from its own precedent if the FAA has taken a different but reasonable position. “[C]onsistency with the FAA’s position is more important than consistency with the Board’s own.” Garvey

, 190 F.3d at 584.

Accordingly, the court denies Pham’s petition for review, grants the FAA’s cross-petiti on for review, and vacates the Board’s Order in part. The court remands this matter to the Board for further proceedings c onsistent with this opinion.