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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

C HARLES E RWIN
, P ETITIONER

v.

F EDERAL A VIATION A DMINISTRATION

, R ESPONDENT

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: H ENDERSON , T ATEL and W ILKINS

, Circuit Judges

.

Opinion for the Court filed by Circuit Judge H ENDERSON

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K

AREN L E C RAFT H ENDERSON

, Circuit Judge : 1 When Charles Erwin, a commercial ai rline 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 explanati on 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 promulga ting regulations, including those “necessary for safety in air commerce.” 49 U.S.C. § 44701(a), (a)(5). Overseeing pilot certificati on 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 commerc ial pilot hold a

medical certificate issued unde r 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 certifi cate), 67.301–.315 (thirdclass certificate). A commercia l airline pilot may exercise

1 NOTE : Portions of this opinion contain sealed information

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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 cer tificate, a pilo t must meet a host of medical standards, including, inter alia

, vision, physical, mental and cardi ovascular 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 airl ine 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 allo ws a pilot with a diagnosed substance dependence to be eligib le for an unrestricted medical

certificate if “there is establishe d 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

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If a pilot with a di agnosed 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 is suance 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 th e FAA’s Office of Aerospace Medicine, whose mission is to “[e]nhance aerospace safety through aeromedical standards, certifica tion, 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).PUBLIC COPY – SEALED INFORMATION DELETED

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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 granti ng 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 ch ange in the holder’s medical condition,” or “[t]he holder fails to comply with a statement of functional limitations or operati onal limitations issued as a condition of certification,” id. § 67.401(f)(1), (2). Within sixty days after service of the withdraw al letter, the pilot may request reconsideration by the Federal Air Surgeon and may file “supporting medical eviden ce” 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 Interven tion 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/.PUBLIC COPY – SEALED INFORMATION DELETED

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Medical Examiner (HIMS AME) is trained to oversee pilots who operate under special issuan ce 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 Memora ndum). The Plan creates tiers through which a pilot progres ses 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 fina l authority on when a pilot progresses through the tiers. Id. at 448. As he progresses, the pilot is subject to less oner ous 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 a ddiction 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 ce rtificate.

Upon completion of an inpatient tr eatment program, Erwin entered

4 Documents related to the HIMS Step Down Plan are located on the HIMS program website: https://himsprogram.com/documents/.PUBLIC COPY – SEALED INFORMATION DELETED

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the HIMS program to obtain a special issuance authorization because his substance dependence diagnosis and insufficient clinical evidence of the requ ired two-year abstinence disqualified him from operati ng under an unrestricted medical

certificate. Based on

and the FAA granted Erwin his first special issuance author ization (Authorization) on May 17, 2017. Unsealed Joint Appendix (J.A.) 68–71. The

Authorization contained monito ring conditions, including random alcohol testing at leas t fourteen times per year, biannual evaluations by Er win’s HIMS AME, annual psychiatric evaluations, afte rcare counseling and reporting requirements. J.A. 70. Crucially, the Authorization was “contingent upon total abstinence from alcohol.” J.A. 69 (emphasis omitted). It was sc heduled to expire on May 31,

2020.

On December 13, 2017, Erwin ate a lunch of pulled pork at a Franklin, Tennessee restaura nt. 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. T hose tests came back negative.PUBLIC COPY – SEALED INFORMATION DELETED

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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 toxi cologist, 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 stat ing 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 (SAMHS A) Advisory on biomarkers, J.A. 202–09; a 2005 Memo from the Alabama State Board of Medical Examiners cautioning ag ainst using solely a positive urine EtG test to take discipli nary action against an employee, J.A. 220–21; and a study recommending us e 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 degr ee of scientific certainty[]

that the result of Mr. Erwin’s ur ine analysis does not represent

conclusive evidence of intent ional alcohol consumption.” The FAA requested additional doc umentation, which Erwin provided. In addition to the original documentation, ErwinPUBLIC COPY – SEALED INFORMATION DELETED

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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 Author ization), accepting Sager’s

recommendations. Erwin is cu rrently 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 Di strict 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 Or der). J.A. 303–04. The two-page Final Order explained that th e Federal Air Surgeon “ha[d] reviewed [Erwin’s] agency medical file and the additional documentation [he] ha[d] submitte d 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” th e withdrawal and “affirm[ed] the withdrawal of [t he] Authorization.” J.A. 303. The Federal Air Surgeon noted that the positive alcohol test was an “adverse change” in Erwin’s medical condition, demonstrated thatPUBLIC COPY – SEALED INFORMATION DELETED

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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 re view, 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 th e constitutional role of the federal judiciary to resolvi ng cases and controversies, a showing of standing ‘is an esse ntial 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 defe ndant’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 plai ntiff moving for summary judgment in the distri ct 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-infact must be “concrete and pa rticularized,” and “actual or imminent, not conjectur al or hypothetical,” Lujan , 504 U.S. at 560 (internal quotation marks omitte d), and “it must be likely, as opposed to merely speculati ve, that the injury will bePUBLIC COPY – SEALED INFORMATION DELETED

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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 Author ization 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 S econd 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—regardle ss of the expiration date

stated on his Authorization—unl ess 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, Erwi n asserts several injuries: additional monitoring require ments based on the Second Authorization, the lost opportuni ty 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 re ferencing its ge nesis: NTSB Safety Recommendation A-07-43. Although neither Erwin nor the FAA elaborates on the Plan, the FAA has apparently begunPUBLIC COPY – SEALED INFORMATION DELETED

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applying the Plan through guidan ce to pilots with special

issuance authorizations. See AME Guide at 446–48. Under the Plan, pilots progress through tiers based on th e 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 prog ression of recovery,” which includes compliance with the sp ecial issuance authorization, the pilot’s individual evaluati on 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 S econd 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 th e Final Order. Translated into tiers, the two-year gap puts Erwi n 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 p eer-pilot and chief-pilot

assessments that he woul d 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.”PUBLIC COPY – SEALED INFORMATION DELETED

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U.S. at 561, that we can redre ss 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 Er win will “continue to be subject to an [a]uthorizatio n with monitoring requirements.” Resp’t Br. 40. But even if th e FAA is correct—and it may not be—its position ignores the eff ects of the Plan. Erwin “need not prove that granting the requested relief is certain to redress [his] injury, especially where so me uncertainty is inevitable.” Competitive Enter. Inst. v. NHTSA , 901 F.2d 107, 117–18 (D.C. Cir. 1990). Having provide d 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 redres s his stunted Plan progress.

B. Merits

Having determined that Erwin has standing, we turn to the

merits. Our review of the FAA Fi nal 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 suppor ted 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 ther efore be part of Erwin’s medical

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the United States, Inc. v. Stat e 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 ac tion” that does not “fail[] to consider an important aspect of the problem,” “run[] counter to the evidence” or is “so implausibl e that it could not be ascribed

to a difference in view or th e 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 quotati on 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 poi nts 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 “wha t 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 furthe r maintains that it need not “author an essay for the disposition of each application” and that “[i]t suffices, in the usual ca se, that [the c ourt] 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)).PUBLIC COPY – SEALED INFORMATION DELETED

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Here, however, the FAA asks us to “discern the why and

wherefore” for its decision ba sed on one statement in the Federal Air Surgeon’s Final Order:

I have reviewed your ag ency medical file and the additional documentation you have submitted in support of your request for review of the withdrawal of you r 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 th e facts found a nd 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 positiv e test and Erwi n’s history of alcohol dependence but ignores Er win’s evidence scientifically attacking the positive test, no twithstanding 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.”PUBLIC COPY – SEALED INFORMATION DELETED

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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 a nd capriciously by failing to weigh the evidence provided w ith 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 de nial 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 ag ency 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 [h is 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 consid ering 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 explai ned its data requirement by providing “its own, unequivocal me dical explanation for requiring” specific data from diabetic pilot). Nonetheless, it will have then met

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has not considered all relevant fa ctors[,] . . . the proper course, except in rare circumstances, is to remand to the agency for additional investigation or expl anation.”). 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

.