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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 9, 2004 Decided April 20, 2004

No. 03-1185

CHARLES E. DUCHEK,

PETITIONER

v.

NATIONAL TRANSPORTATION SAFETY BOARD AND

FEDERAL AVIATION ADMINISTRATION,

RESPONDENTS

On Petition for Review of an Order of the

National Transportation Safety Board

James E. Ramsey argued the cause and filed the briefs for

petitioner.

Agnes M. Rodriguez, Attorney, Federal Aviation Administration, argued the cause for respondents. With her on the

brief was Peter J. Lynch, Assistant Chief Counsel. Allan H.

Horowitz, Attorney, entered an appearance.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Before: GINSBURG, Chief Judge, and RANDOLPH and

ROBERTS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBERTS.

ROBERTS, Circuit Judge: The Federal Aviation Administration revoked Charles Duchek’s three airman certificates, basing its action on a finding that Duchek had refused to submit

to a required drug test. Duchek argues that he never

refused to submit to a test: although he received a letter

stating that his name had been randomly selected for testing,

the letter did not establish a date and time to report for the

test — because, in the typical case, it was Duchek’s job to set

the date and time for those company employees selected for

the unannounced tests. An administrative law judge at the

National Transportation Safety Board agreed with Duchek

that a test must be scheduled before an airman can be

deemed to have refused to submit to it, but the Board

reversed, holding that the FAA acted properly in revoking

Duchek’s certificates. We hold that the applicable regulations do not support the FAA’s action, and therefore vacate

the Board’s order as arbitrary and capricious.

I.

Duchek is the operator and the co-owner, with his wife, of

Midwest Aeronautical Training, Inc., a small company in St.

Louis, Missouri that provides helicopter services, including

air taxi service and pilot training. As a provider of commuter

and on-demand flight services, Midwest holds a certificate

under Part 135 of the Federal Aviation Regulations, codified

at 14 C.F.R. Part 135. Employers with such certificates must

ensure that employees in safety-sensitive positions are tested

for illegal drugs, see 14 C.F.R. § 135.251(a); a separate

section of the regulations, Appendix I to 14 C.F.R. Part 121,

establishes the standards for employers’ drug testing programs. In addition to pre-employment and post-accident

testing, an employer must conduct random testing: in any

given year, a certain fraction of the company’s employees —

generally at least fifty percent — must be selected at random

for a drug test. See 14 C.F.R. Pt. 121, App. I, ¶ V.C.1, .5–.6
3

(hereinafter App. I). When an employee has been randomly

selected, it is the employer’s duty to ensure that the employee’s drug test is ‘‘unannounced.’’ Id. ¶ V.C.7.

For a small business such as Midwest, which has only two

employees aside from Duchek himself, the operation of a fullfledged internal drug testing program could be burdensome.

Department of Transportation regulations — which apply in

addition to the FAA regulations in Appendix I, see id.

¶ I.B — accordingly allow an employer to use a ‘‘consortium/third-party administrator’’ (C/TPA) to select employees

at random for testing, schedule tests, collect specimens, and

arrange for laboratory testing. See 49 C.F.R. §§ 40.3,

40.15(a); see generally 49 C.F.R. Pt. 40, Subpt. Q. As both

the FAA and DOT regulations make clear, however, the

employer retains the responsibility for compliance with the

testing requirements, even when it hires a C/TPA. App. I

¶ I.C; 49 C.F.R. § 40.15(c).

Midwest hired Clinical Collection Management, Inc. (CCM)

as its C/TPA in August 1999. When the drug testing regulations took their current form in August 2001, see Procedures

for Transportation Workplace Drug and Alcohol Testing Programs, 65 Fed. Reg. 79,462 (Dec. 19, 2000), Duchek took on

the newly-created role of ‘‘designated employer representative’’ (DER) for Midwest. See 49 C.F.R. § 40.3. Midwest’s

random drug testing program thereafter involved two steps:

CCM would send a quarterly notice to Duchek, as DER,

listing the employees selected for testing, along with an

individualized notice to be given to each employee. Duchek — in his capacity as DER — would then choose a date

and time for each selected employee to report for testing, but

would notify the employee only on the chosen date, instructing him to report immediately for testing. The individualized

notice forms from CCM thus arrived at Midwest with only

blank spaces for the specific date and time of the test;

Duchek would fill in a date and time as part of choosing when

to spring the drug test on the presumably unsuspecting

employee.
4

On October 1, 2002, CCM selected Duchek and another

employee, Jonathan Heslop, from the pool of Midwest employees eligible for testing in the fourth quarter of 2002. In

Heslop’s case, the system worked as it was supposed to:

Duchek chose October 28 as the date for Heslop’s test and

instructed Heslop on that day to report promptly to CCM.

With regard to himself, however, Duchek was somewhat in a

bind: he was both the DER and the person to whom the

DER was required to give unannounced instructions to report

for testing. CCM’s solution to this problem, its president

later testified, was that a DER such as Duchek should contact

CCM immediately upon opening the notification letter to

arrange for a test on that day. Hr’g Tr. at 43–44. The test

could take the form of a same-day visit by CCM to the DER’s

workplace, or a scheduled appointment for the DER to come

to CCM on that day. Id. at 44. In the case of his fall 2002

selection, however, Duchek failed to contact CCM. He later

explained to the FAA that a number of disruptive events had

occurred in his business at the time and that he ‘‘just let the

notice slip [his] mind and forgot to follow up.’’ Statement of

Events (Feb. 20, 2003), at 1; see also Hr’g Tr. at 152–53

(Duchek stating that he knew he was supposed to call CCM

to schedule a test but he ‘‘mislaid the notice and TTT forgot to

call’’).

The FAA issued an emergency order revoking Duchek’s

airman certificates on March 20, 2003. As authority for the

revocation, the FAA cited 14 C.F.R. § 61.14(b), which states

that an airman’s refusal to take a drug test as required under

Appendix I is grounds for ‘‘[s]uspension or revocation of any

certificate, rating, or authorization’’ issued to the airman. 14

C.F.R. § 61.14(b)(2). Appendix I, in turn, defines a ‘‘refusal

to submit’’ to a drug test simply as ‘‘conduct specified in’’ the

pertinent DOT regulation, 49 C.F.R. § 40.191. App. I ¶ II.

That regulation provides, in pertinent part, that an employee

has refused to take a test if he:

Fail[s] to appear for any test TTT within a reasonable

time, as determined by the employer, consistent with

applicable DOT agency regulations, after being directed
5

to do so by the employer. This includes the failure of an

employee (including an owner-operator) to appear for a

test when called by a C/TPA (see § 40.61(a)).

49 C.F.R. § 40.191(a)(1).

At the end of the long chain of cross-references, 49 C.F.R.

§ 40.61(a) — a provision addressed to C/TPAs and other

service agents who collect drug testing specimens — states:

When a specific time for an employee’s test has been

scheduled, or the collection site is at the employee’s work

site, and the employee does not appear at the collection

site at the scheduled time, contact the DERTTTT If the

employee’s arrival is delayed beyond [an appropriate]

time, you must notify the DER that the employee has not

reported for testing. In a situation where a C/TPA has

notified an owner/operator or other individual employee

to report for testing and the employee does not appear,

the C/TPA must notify the employee that he or she has

refused to test (see § 40.191(a)(1)).

49 C.F.R. § 40.61(a).

Duchek challenged the revocation order, arguing that he

was not ‘‘called’’ for testing as required by Section

40.191(a)(1) and that he could not be held to have ‘‘refused’’ to

take a drug test, because no date and time for the test were

ever scheduled. See Amended Answer ¶¶ 21–22. At a hearing on April 17, 2003, an NTSB administrative law judge

heard testimony from Duchek and two other witnesses: the

president of CCM and an FAA investigator, Robert Neal.

Neal testified that for a drug test to be random under

Appendix I, it must be unannounced. Hr’g Tr. 114. The

ALJ found Neal’s statement highly significant, and concluded

that ‘‘there was no random drug test scheduled’’ for Duchek,

because ‘‘if there is an announcement, [the test] can’t be

random, if it is open ended. And here it was open ended.’’

Id. at 216–19. The judge thus ruled that the FAA had not

established that Duchek had violated the regulations. Id. at

219.
6

The Board reversed:

It is true that, in a sense, [Duchek’s] selection was not

unannounced in the same way it was for other employees.TTT It may be that the Administrator should reconsider the practices of allowing persons subject to testing

also to be DERs and not requiring the notice to the DER

to contain a time and date or period of time for the

scheduled testing. Without the latter specificity, the

rules are open to uncertainty in their application and an

element of this important program could be the subject

of time consuming and unnecessary litigation. In this

case, however, we are satisfied that respondent should be

held accountable for failing to ever appear for testing.

Administrator v. Duchek, NTSB Order No. EA-5040 (May

23, 2003), at 4–5 (Board Order).

The Board reasoned that ‘‘as the DER, and owner of the

company, [Duchek] had a clear responsibility to comply with

the letter and spirit of the antidrug program.’’ Id. at 5. It

found that Duchek was ‘‘obliged to present himself for testing’’ as soon as he received notice from CCM that he was

among those selected for testing that quarter. Id. Rejecting

Duchek’s proffered explanation of why he did not call CCM to

schedule the test, the Board stated:

[T]he responsibility was his, not CCM’s. Reminding was

not a service CCM provided, nor could it realistically do

so. Under the regulations, the service agent may assist

the carrier in certain functions, not absolve it of its

primary responsibility to maintain a drug-free workplace.

Indeed, the quality of the assistance is only as good as

the information the client provides.

Id.

II.

Under the FAA’s interpretation of the regulations, Duchek

was ‘‘require[d]TTT, as the selected employee, to appear as

soon as possible after he [was] informed of his selection.’’

FAA Br. at 31; see also Board Order at 5 (‘‘[R]ight after he

read the TTT letter from CCM identifying him as a random
7

testing subject, he was obliged to present himself for testing.’’). An agency is ordinarily entitled to ‘‘substantial deference’’ to its interpretation of its own regulations. Thomas

Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (citing,

inter alia, Udall v. Tallman, 380 U.S. 1, 16 (1965)). Even

assuming that the FAA is entitled to deference for an interpretation that encompasses not only FAA regulations, but

also DOT regulations applied by other agencies as well, see

Collins v. NTSB, 351 F.3d 1246, 1253 (D.C. Cir. 2003), the

FAA’s interpretation would still not survive, because it is

‘‘inconsistent with the regulation’’ in two significant respects.

Thomas Jefferson Univ., 512 U.S. at 512 (internal quotation

marks and citation omitted); cf. Kennecott Utah Copper Corp.

v. U.S. Dep’t of Interior, 88 F.3d 1191, 1210 (D.C. Cir. 1996)

(court will not resolve whether agency interpretation is entitled to Chevron deference because interpretation would not

survive even if deference were given).

First, the FAA’s interpretation seizes upon a provision of

the regulations — the first sentence of 49 C.F.R.

§ 40.191(a)(1) — that, by its terms, cannot readily be applied

to a DER such as Duchek. See FAA Br. at 19, 31–32. The

provision states that an employee must appear for a drug test

‘‘within a reasonable time, as determined by the employer,

consistent with applicable DOT agency regulations, after being directed to do so by the employer.’’ 49 C.F.R.

§ 40.191(a)(1) (emphases added). It is the DER who carries

out the employer function of determining the reasonable time

for reporting — the language ‘‘within a reasonable time, as

determined by the employer’’ dovetails neatly with the wording of 49 C.F.R. § 40.61(a), which instructs the C/TPA to

consult with the DER ‘‘to determine the appropriate interval

within which the DER has determined the employee is authorized to arrive.’’ And of course it is the DER who carries

out the employer function of directing selected employees to

report for testing in the first place.

The first sentence of Section 40.191(a)(1) applies quite

comfortably to someone in Heslop’s position — he is required

to appear within a reasonable time after being told by Duchek

to report for testing, and CCM should consult with Duchek to
8

establish exactly when to expect him — but the first sentence

does not similarly apply to a selected DER such as Duchek.

The FAA argues that the receipt of the selection notice from

CCM functioned for Duchek in the same way that a direct

order from Duchek to report immediately to CCM functioned

for Heslop. But a selection notice and a blank form from a

C/TPA cannot be considered a ‘‘direct[ion] TTT by the employer’’ equivalent to an order from a DER given — along with a

form that has been filled in to indicate a specific date and

time — to an employee. Nor, in such a case, is there any

mechanism for the C/TPA to find out what constitutes ‘‘a

reasonable time, as determined by the employer,’’ for the

DER to appear for the test. CCM could coordinate with

Duchek to find out the appropriate period within which a test

for Heslop would be timely, but would have no one to contact

at Midwest regarding Duchek’s own test.

The second sentence of 49 C.F.R. § 40.191(a)(1), referring

to a failure ‘‘of an employee (including an owner-operator) to

appear for a test when called by a C/TPA (see § 40.61(a)),’’

initially looks more promising, since it specifically addresses

testing of owner/operators such as Duchek and the involvement of C/TPAs. The FAA, however, chose not to rely on

that sentence, declaring that it ‘‘does not apply on the facts of

this case,’’ FAA Br. at 31–32, apparently because the crossreference to Section 40.61(a) renders it applicable only to

cases where an individual’s test has actually been scheduled.

See id. at 28. CCM did not schedule Duchek’s test — the

individualized form it sent for his test had the date and time

to report left blank, just like all the other forms.

The FAA defends its reliance on the first sentence of

Section 40.191(a)(1) by arguing that the foregoing difficulties

disappear if it is understood that the DER must contact the

C/TPA to schedule an immediate test as soon as he sees that

his name has come up for random testing that quarter. Such

an understanding, the FAA argues, is implicit in a sensible

reading of the regulations. Oral Arg. Tr. at 20–21; see also

Board Order at 5 (FAA interpretation is ‘‘the obvious conclusion if the testing program is to have any integrity’’). But

the FAA’s rejoinder simply brings forth another inconsisten-
9

cy with the regulations: the FAA’s interpretation is inconsistent with the requirement in Appendix I that ‘‘[e]ach employer shall ensure that random drug tests TTT are unannounced.’’

App. I ¶ V.C.7. Only by granting the assumption that a DER

will always immediately contact the C/TPA to schedule his

test upon opening the letter selecting him for one can the

requirement that the DER’s test be unannounced be satisfied.

See Hr’g Tr. at 135 (Neal testimony) (‘‘When [notice of

selection] is received in the mail, the only way it would be

unannounced is if [the DER] went as soon as he opened up

the mail.’’).

As the ALJ observed, however, under the FAA’s view a

DER can simply claim to have opened the notice later than he

actually did. Hr’g Tr. at 218 (requirement that DER call

when he receives selection notice ‘‘leaves so many loopholes

that it is almost frightening, because all a person has to do is

say, hey, I didn’t open the mail until Friday, when in fact they

opened it Monday, and they didn’t do drugs all week, so that

just defeats the purpose’’). Indeed, a DER who recognizes

an envelope from a C/TPA — and perhaps appreciates that it

is the first week of the quarter, when random selections are

made — would not even have to lie about when he opened the

envelope: he could simply set it aside long enough to allow

any traces of illegal drugs to leave his system. The FAA’s

interpretation not only requires a hypothetical drug-using

DER to call and schedule a (presumably fateful) test immediately upon opening a selection notice, but requires him to do

so to comply not with the letter of the regulations, but with

their ‘‘spirit.’’ FAA Br. at 39; Oral Arg. Tr. at 32.

The Board was willing to indulge the assumption underlying the FAA’s interpretation, see Board Order at 5 n.6

(‘‘Contrary to the [ALJ], we will not assume the likelihood of

DER cheating.’’), but we are not. A sport such as golf can

have a system of rules grounded on the assumption that

participants will in good faith call penalties on themselves, but

such an approach seems ill-advised when it comes to designing regulations to protect the public from drug use by those

in safety-sensitive positions — and in fact that is not the

approach reflected in these regulations. Indeed, the FAA’s
10

assumption flies in the face of the entire regulatory scheme,

which specifically requires drug tests to be random, unannounced, and spread throughout the year, see App. I ¶ V.C.7,

precisely because some employees — including DERs — may

attempt to evade their tests. The regulations foreclose any

assumption that a DER who is already using illegal drugs will

nonetheless handle his own selection notice with impeccable

scrupulousness and truthfulness — to his inevitable and

substantial detriment.

The FAA argues that its action has a basis in NTSB

precedent, relying on Administrator v. Wright, NTSB Order

No. EA-4895 (May 17, 2001), 2001 WL 540575. In Wright,

the FAA revoked the certificates of a mechanic who left work

before the scheduled end of his shift after being told that he

had been selected for drug testing and that the test would

occur in forty-five minutes. Id. at *1. As the FAA points

out, the Board in Wright reasoned that there was ‘‘nothing in

the record which indicates that respondent was unaware that

he had been selected, in accordance with FAA requirements,

for random drug screening.’’ Id. at *2. The FAA argues

that the same is true here: the record unequivocally indicates

that Duchek knew his name had been randomly selected for a

drug test. FAA Br. at 38–39. But it is overwhelmingly clear

that the Board in Wright used the word ‘‘selected’’ to encompass both the random selection of Wright for testing and the

scheduling of the test for that day. Wright thus provides no

support for the Board’s decision to revoke Duchek’s certificates.

Even if we assume arguendo that the enforceable ‘‘spirit’’

of the regulations required Duchek to call CCM immediately

to schedule his own test, FAA Br. at 39, any failure to do so

would be a failure as a DER, not as an individual airman.

The regulations provide no basis for revoking the certificates

of an individual airman when his employer or DER fails to

schedule a random drug test for him. Moreover, as the FAA

conceded at oral argument, the regulations would not penalize

a DER for failing to schedule an employee’s test. If Duchek

had failed to schedule a test for an employee such as Heslop,

Duchek would not have faced the revocation of the certificates
11

that he held as an individual. Oral Arg. Tr. at 28–29.

Indeed, the employer is ‘‘responsible for all actions of [its]

officials, representatives, and service agents’’ in carrying out

the FAA and DOT drug testing requirements. App. I ¶ I.C.

Duchek has thus consistently argued that Midwest, rather

than he, should be held responsible for his failure to be

tested. See Amended Answer at 7 ¶ 27; Hr’g Tr. at 141, 174;

Pet. Br. at 16–17. In response, the FAA argues that Duchek

‘‘cannot hide behind Midwest as an excuse for his failure as

an employee to submit to required drug testing,’’ and that

Duchek’s position rests on ‘‘formalistic distinctions between

himself as DER for Midwest and himself as a TTT safetysensitive employee.’’ FAA Br. at 16, 37.

The distinction may be formalistic to a degree, but it —

unlike the FAA’s position — has a basis in the regulations, as

just noted, and in NTSB precedent. In Administrator v.

Diaz–Saldana, NTSB Order No. EA-165 (June 3, 1970), 1970

WL 9437, the Board discussed ‘‘whether it is appropriate to

apply a sanction to the airman certificate because of a violation committed as an operator.’’ Id. at *2. Diaz–Saldana’s

company had operated approximately 100 flights in violation

of applicable regulations; because the airman had personally

served as a crew member on only two of the flights, however,

the Board determined that his ‘‘conduct reflect[ed] more

directly on his fitness as an operator than on his qualifications

to hold an airman certificate,’’ and decided not to revoke his

pilot certificate. Id. at *3. In a later case involving the same

operator, the Board reiterated that ‘‘the fact that the respondent was acting in his capacity as an operator rather than a

pilot TTT ha[s] a significant bearing on the question of sanction.’’ Administrator v. Diaz–Saldana, NTSB Order No.

EA-337 (June 7, 1972), 1972 WL 17060, at *3.

The Board’s opinion upholding the FAA’s interpretation

frequently ignores the distinction between Duchek and his

company. In a single paragraph central to its analysis, for

example, the Board states that ‘‘the responsibility [for calling

to schedule a test] was his, not CCM’s’’ and that ‘‘the service

agent may assist the carrier in certain functions, not absolve
12

it of its primary responsibility to maintain a drug-free workplace.’’ Board Order at 5. Under the regulations, however,

the responsibility for calling to schedule a test was the

DER’s — thus Midwest’s — and Duchek, as an airman, is not

a Part 135 ‘‘carrier’’ (or an ‘‘it’’) responsible for implementing

an adequate drug testing program. The legally significant

distinction between Duchek’s airman certificates and Midwest’s operating certificate — which is evident in the regulations and in the Diaz-Saldana cases — disappears in this

portion of the Board’s opinion. To the extent, however, that

the C/TPA arrangement between Midwest and CCM was

flawed — in that it did not require CCM to assume scheduling responsibilities when a DER was selected for testing, or

otherwise address the problem of selecting and scheduling a

DER for testing consistent with the regulations — the blame

for that lies with Midwest or CCM or both, not with the DER

as an airman.1

* * *

As the NTSB admitted in this case, the obligations of

DERs under the regulations are unclear. The Board ultimately found that it was ‘‘satisfied’’ that Duchek should be

held accountable, but it reached that level of satisfaction only

by invoking the ‘‘spirit’’ of the regulations, by accepting an

FAA interpretation that is inconsistent with the text and

purpose of the regulations, and by arbitrarily targeting Duchek’s individual airman certificates when the governing regulations — and analogous precedent — indicate that employers should bear the responsibility for carrying out the FAA’s

drug testing requirements. The Board’s action violates the

Administrative Procedure Act as ‘‘arbitrary, capricious, TTT or

otherwise not in accordance with law,’’ 5 U.S.C. § 706(2)(A),

and we now set it aside. The petition for review is granted

and the Board’s order is vacated.

1 In light of our conclusion that the FAA’s action in this case was

inconsistent with the regulations, we need not and do not address

Duchek’s argument, see Pet. Br. at 24–29, that the regulations, as

interpreted by the FAA, were unconstitutional as applied to him.