[00:00:00] Speaker 01:
Case number 14-1277, Jeffrey Swatters, Petitioner vs. United States Department of Transportation.

[00:00:07] Speaker 04:
Mr. Joe for the petitioner, Mr. Sergio for the respondent.

[00:00:55] Speaker 00:
All right, Mr. Joe, we're ready for you.

[00:01:06] Speaker 00:
We can't hear without the microphone.

[00:01:09] Speaker 01:
Here on behalf of Mr. Swatters, Your Honor, Tony B. Joe, and I'd like to start off by saying that

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Mr. Swatter has had an unblemished record for 14 years as a commercial airline pilot.

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Never, ever had any indication, violations, any sort of problem with drugs and alcohol.

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As a matter of fact, he was an amazingly great airline pilot, the kind you really want flying your airplane.

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He got into this problem that is really apparent in the drug and alcohol collection process that DOT controls the regulations of, and then those regulations apply to countless agencies throughout the government.

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One of the agencies is the FAA.

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So DOT, when you have an enforcement case brought by the FAA against a commercial pilot for his laboratory sample coming back positive, it will then just take the laboratory's result as a given fact and the actual, in bringing an FAA enforcement action to revoke a license based on this,

[00:02:25] Speaker 01:
what actually happens is a disconnect between the ability to go after the root problem of identity, which, if you think about DNA testing throughout this country and all sorts of types of cases, allowed by all the states and kicked back by the Supreme Court to the states to administer,

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you have a big block in the ability of a pilot to do anything about it at the enforcement level with the FAA.

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Is this really an FAA or even DOT problem?

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Congress's statute 49 USC 45104 requires incorporation of Department of Health and Human Services guidelines, right?

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And those are the guidelines that ultimately say

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you can't test for DNA, right?

[00:03:17] Speaker 01:
Well, the Ombudsman Act of 1991 issued by Congress directed HHS to develop guidelines for it to be used and then and for all the other agencies to adopt their own guidelines.

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That's what DOT did.

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I'm not sure it says

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Carrying out section 45102 of the title, the administrator of FAA shall develop requirements that incorporate the Department of Health and Human Services scientific and technical guidelines and any amendments to those guidelines, right?

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The FAA is bound to adopt, according to Congress, whatever the Department of Health and Human Services guidelines are.

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The agency that controls the FAA's guidelines with regard to drug and alcohol testing is the DOT, Department for Transportation.

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Let me ask it another way.

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The HHS guidelines clearly prohibit the use of specimens for DNA testing.

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Would it be possible for the FAA

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to take a different view and say you can use

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the specimens for DNA testing?

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Well, the DOT engaged in its own NPRM process and asked the stakeholders in the industry to comment.

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And they all commented.

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And at that time, DOT assured the industry that there would be the ability to evaluate mistakes in the process.

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But when DOT actually issued Part 40, 49 CFR Part 40,

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particularly part 41.13 prohibited the use of DNA testing at all.

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That did mirror a statement made in HNHS's guidelines, so you have that, that's true.

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But the FAA takes, has the case that

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was brought against Mr. Swatters by the FAA, he didn't have any procedural way to go after the sample other than a change of custody.

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He had to follow, he was, the FAA

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has these regulations under Part 120 of the FARs, which basically take the results of the laboratory's finding and make those a given fact.

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I guess what I'm asking is, can you tell me a way to read Section 45104 that would allow the FAA to do something different than Health and Human Services does with respect to DNA testing?

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I'm not sure I can answer that question because I feel like the FAA's adoption of the drug and alcohol regulations that they received from DOT are their regulations.

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The Guidelization HS have merely the

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The DOT, they're both basically the same, but you don't have any attack like we.

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This gentleman went back home and he was really wanted to bring a tort case to prove it wasn't him.

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Follow the tort case and then DOT interferes at the state level.

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by telling the attorneys for the laboratory to continue to fight the resistance of the production of the document, I mean, the laboratory sample for DNA testing, and to cite federal preemption.

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Well, there is no federal preemption.

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Once it goes back, it's all done and it's over with.

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This is an entirely different case.

[00:07:08] Speaker 03:
It's an entirely different case, but the case you're making in the state court would raise the same issue, would it not, if it was resolved finally in the 11th Circuit in prior litigation.

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The problem with res judicata and collateral estoppel is that in the NTSB-ALJ hearing and the board's review of that hearing, there is no procedural way.

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They don't follow the federal rules of civil procedure.

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They follow their own rules under 821 of the NTSB.

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Those rules don't allow a collateral attack on or discovery or crawling experts or cross examination at the end at the NTSB enforcement hearing of the laboratory.

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The laboratory is not a party to the F. A. Proceeding.

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It's just the F. A. Against the airman and the judges won't allow it because they take the result of the sample as true.

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And the only thing you can do is put on some evidence about whether he saw the guy initial, the thing, and all this chain of custody stuff.

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But as far as an attack on the identity of it being switched somehow, there's no way to do that.

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There's no way to preserve any evidence.

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There's no way to have a Fifth Amendment right to put on evidence and cross-examination, create a record, so the 11th Circuit can even have anything to look at.

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And he didn't really object to it.

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Yes, they adopted the findings of the Administrative Law Judge.

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Absolutely.

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Absolutely.

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It's just like the McNary case the Supreme Court decided.

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Procedurally, Mr. Swatters didn't have any way to go after the DOT regulation because he can't, believe it or not, he couldn't even put a trial on at the ALJ about the DOT's regulations because the charges made against him are FAA violations, not DOT.

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So the judge won't entertain it because it's not a regulation that's being pursued.

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So if you prevail here.

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And you go back then to the state court with your sample.

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Yeah, this was just a tort case that he wanted to bring against the laboratory.

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They have a high percentage of failure rates.

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I've handled a number of these cases.

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But the point is, this is an image of tort state action that he's had now, which is like seven or eight years after the whole FAA thing was over.

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He wasn't really injured.

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He didn't have standing to be here today, and he didn't have an injury.

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And the real injury he suffered was DOT's inability under APA to respond to our inquiry about their regulation.

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I mean, I'm sure you've read what they told us, which was essentially, we're not going to go back and open an old case.

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What we ask about their regulation, because in Part 40, there is a provision they can release the sample.

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All we're really after is that sample.

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So if I look at 40.13, 49 CFR, it says a laboratory is prohibited for making a DOT urine specimen available for DNA tests.

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or other type of specimen identity.

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And I submit that that's true in the administrative enforcement FAA proceeding, but not in the state court proceeding.

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In the state court proceeding... It doesn't say that.

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It just says these are all about laboratories.

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And it says the laboratory is prohibited from making your sample available.

[00:11:10] Speaker 01:
But there's also language in Part 40 that allows for the laboratory to move to quash the subpoena to produce it, but only one time, not continually go up to the Supreme Court of the state of Florida in this case, suggesting that it's federal preemption.

[00:11:33] Speaker 00:
Well, what about the statute that says, which is 49 U.S.C.

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and 49 106?

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You brought that up before, and I understand.

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And we submit the statutes unconstitutional.

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That's blah blah blah.

[00:11:44] Speaker 00:
Ah, I see.

[00:11:45] Speaker 01:
So this is actually constitutional.

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It's a constitutional argument.

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You want us to overturn the statute?

[00:11:52] Speaker 01:
I want you to overturn the 40.13 as unconstitutional in the state court toward action because it violates the 10th Amendment.

[00:11:59] Speaker 00:
Oh, OK.

[00:12:00] Speaker 00:
So the statute says,

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A state or local government may not prescribe, issue, or continue in effect a law, regulation, standard, or order that is inconsistent with regulations prescribed under this chapter.

[00:12:13] Speaker 00:
And that's HNHS, isn't it?

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Or is that part 40?

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This is 49 USC 45106.

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That's DOT.

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49106.

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Yeah.

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That's true.

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As far as the state's regulations... That's federal preemption.

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And you're saying that that's unconstitutional in light of the 10th Amendment.

[00:12:33] Speaker 01:
No, what I'm saying is, what's unconstitutional is that he has no way to go forward with his state tort case at all, which the judge ordered the sample produced.

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for evaluation.

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They moved to Washington.

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The judge ordered it produced.

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They took an appeal to the circuit court and the circuit court decided they were told that DOT wouldn't allow it and so they just wouldn't release it.

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Wasn't that a decision of the state courts that they are going to

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honor the federal preemption statute and the federal regulation?

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We say in our case, DOT interfered with the state court proceeding because they're not supposed to do anything more than move to quash.

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They're supposed to comply with all state orders.

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They had a state order, the second order, to say it was produced by the state court judge, but they still wouldn't comply.

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And then they told the attorneys to go tell the court of appeals that it was federal preemption.

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It's not federal preemption as to the state tort case.

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That's how the constitutional problem comes up.

[00:13:37] Speaker 01:
I think I'm out of time.

[00:13:38] Speaker 03:
You're out of time.

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Did you not get in your brief?

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I thought your brief was aimed solely at the regulation.

[00:13:55] Speaker 01:
Well, no, my brief is aimed at the failure of DOT to answer the question we asked them, and that because we were trying to get them to release the sample because they have a – there's an authority in the part 40 that allows them to release the sample.

[00:14:09] Speaker 01:
They wouldn't even answer the question.

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So it's arbitrary and capricious to not even answer our questions.

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So where does the – where does your claim that the statute is unconstitutional?

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Is it in this litigation or in the state?

[00:14:19] Speaker 01:
It's in this litigation because DOT has injured... Okay, if it's in this litigation, where is it in your brief?

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Where it's in my brief is throughout the brief.

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That the statute is unconstitutional.

[00:14:32] Speaker 01:
40.13 is, as applied, is unconstitutional because it's being used to interfere in state court tort cases long after the administrative process is completely over.

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40.13.

[00:14:44] Speaker 03:
But that's the regulation.

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That's the regulation.

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I know it's the regulation, but the regulation as applied in the state court proceeding is depriving him of his due process rights to a full hearing, a full trial.

[00:14:58] Speaker 03:
You can't really... I've got the regulation on the regulation as applied in the state court proceeding.

[00:15:02] Speaker 03:
I still don't have the statute.

[00:15:04] Speaker 03:
Where is it that you're arguing the statute is unconstitutional?

[00:15:07] Speaker 01:
I'm arguing a part of the statute.

[00:15:11] Speaker 01:
40.13 is unconstitutional as applied.

[00:15:15] Speaker 03:
40.13 isn't the statute, right?

[00:15:19] Speaker 03:
Isn't that right?

[00:15:21] Speaker 03:
Am I right about that?

[00:15:22] Speaker 00:
Yeah, 40.13 is the regulation.

[00:15:23] Speaker 00:
What do you mean that you think the regulation is unconstitutional?

[00:15:28] Speaker 01:
Yeah, I'm sorry if I said the statute.

[00:15:30] Speaker 01:
Yeah, the regulations on Constitution, because he has no right to his, say, tort case and the normal discovery, and there's no way to get the discovery if DOT says you can't have it.

[00:15:41] Speaker 01:
And this sample's sitting on a shelf, and he can either prove it's him or not.

[00:15:45] Speaker 01:
DNA testing is widely used.

[00:15:47] Speaker 00:
Okay.

[00:15:48] Speaker 00:
Thank you.

[00:15:49] Speaker 00:
We'll hear from DOT.

[00:15:57] Speaker 02:
Good morning.

[00:15:58] Speaker 02:
May it please the court, I'm Lowell Sturgill from the Department of Justice on behalf of the Department of Transportation.

[00:16:05] Speaker 02:
The Department of Transportation lawfully declined to grant Mr. Swatter's request for release of his urine specimen for DNA testing under the Department's regulations, specifically the 40.13 regulation that you have already discussed.

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And we believe that the Department's action was consistent with the regulations, with the applicable statutes, and with the Constitution.

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Now, do you read the H8 Department of Health and Human Services regulation guidelines to essentially make the provision in the DOT guidelines for exemptions?

[00:16:46] Speaker 04:
That's 40.7.

[00:16:49] Speaker 04:
Unlawful?

[00:16:51] Speaker 02:
I know, Your Honor.

[00:16:52] Speaker 02:
Council was referring to 40.331 of the FAA, the DOT regulations and what those say.

[00:17:03] Speaker 04:
But I'm trying to get back to the Chief Judge was asking about the Department of Health and Human Services guidelines, which must be incorporated into the DOT regulations.

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But the DOT regulations allow for an exemption under 40.7.

[00:17:25] Speaker 04:
So when I read that, I thought the department was taking the position that the HHS guidelines do not restrict its ability to, in its discretion, allow for exemptions.

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So I'm not sure what you're referring to in 40.7.

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I can look at that.

[00:17:50] Speaker 02:
No, I know.

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And nobody cites it.

[00:17:51] Speaker 04:
So I appreciate that.

[00:17:53] Speaker 04:
But I'm just trying to understand, following up on the Chief Judge's questions about the impact of the HHS guidelines on what DOT is able to do in its regulations.

[00:18:04] Speaker 02:
Right.

[00:18:05] Speaker 02:
So the key regulation is 40.13, and that has a categorical rule that bars the release of any urine specimen to a donor for the purposes of conducting a DNA test.

[00:18:17] Speaker 04:
By the laboratory, unless the department consents or ordered by a court.

[00:18:24] Speaker 02:
No, that's not what the regulation says.

[00:18:26] Speaker 02:
That's why I'm trying to point to... Right.

[00:18:29] Speaker 02:
What he's talking about is 40.331.

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Yes.

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And what that regulation says is that if a donor wants to request a specimen,

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For any circumstance, you can request that from the department, and the department can consider that.

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But it doesn't say that the department can release that if the request is for the purpose of DNA testing.

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That's specifically addressed by 40.13, and we've said that basically you have a specific regulation, 40.13, that categorically bars that release, and that that controls in this context over a more general regulation, which allows a donor to request the release of a specimen for some unspecified purpose.

[00:19:17] Speaker 02:
And this scheme is consistent with the HHS guidelines.

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which themselves categorically bar the release of a urine specimen for DNA testing.

[00:19:29] Speaker 02:
I should also say with respect to .40.331,

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The way that regulation operates in practice is that it's basically a notification to the donor that once they provide that specimen for the government as part of the drug testing, they lose control over that specimen.

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It's no longer their property.

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It's the government's property.

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And if they want it, they have to request it.

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But again, they can't get it because there's a categorical bar.

[00:19:55] Speaker 04:
So the request is meaningless is what I'm... In other words, we have a system here where when you read it, it looks like

[00:20:03] Speaker 04:
You can figure out a way to get it, but in fact you can't get it because the HHS guidelines prohibit DOT from consenting to release.

[00:20:17] Speaker 02:
Well, again, 40.331 does not specify the reasons why a person can request a specimen, right?

[00:20:25] Speaker 02:
So that is governed by 40.13.

[00:20:26] Speaker 02:
So there's no, there's no trap.

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But here's what I want to understand.

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I'm a pilot.

[00:20:32] Speaker 04:
I have a spotless record and I'm notified that a urine sample tests positive and I'm fired.

[00:20:44] Speaker 04:
I know

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from all kinds of data in my hypothetical, that the collection agency is a mass of errors, 80% collection problems.

[00:20:56] Speaker 04:
But the regulations say it's presumed that the chain of custody is protected.

[00:21:07] Speaker 04:
And that's where the agency stops, as I understand it.

[00:21:12] Speaker 02:
Not at all, Your Honor.

[00:21:14] Speaker 04:
What I'm just trying to understand is that if I accept a job as a pilot and I'm on notice that I may be subject to random urine samples, testing, if a test comes back positive, I'm out of a job.

[00:21:34] Speaker 04:
I mean, there's nothing I can do.

[00:21:36] Speaker 02:
No, not at all, Your Honor.

[00:21:37] Speaker 04:
What can I do?

[00:21:38] Speaker 02:
Exactly what he did here.

[00:21:39] Speaker 04:
But he's been totally unsuccessful because he can't make a record.

[00:21:44] Speaker 02:
No, that's not the case.

[00:21:46] Speaker 04:
All right.

[00:21:46] Speaker 02:
First of all, he did have a chance to challenge his license revocation, and he did have a chance to challenge the chain of custody as it happened in his case.

[00:21:53] Speaker 04:
How could he do that?

[00:21:55] Speaker 02:
Well, he testified, for example, that he didn't see, that the urine collector, he didn't see him, the collector, pour the specimen into the two bottles.

[00:22:05] Speaker 02:
He said, I didn't see that, so there could have been a problem with that.

[00:22:08] Speaker 04:
There could have been?

[00:22:09] Speaker 04:
That's not evidence.

[00:22:11] Speaker 02:
Well, yes it is.

[00:22:12] Speaker 02:
It's evidence that both the ALJ and the NTSB and the 11th Circuit rejected because they found his testimony to be not credible and because of the... Because it was just speculation.

[00:22:25] Speaker 04:
So my question is, how can you get evidence, other than a GAO report and that type of thing, that this lab has a terrible record?

[00:22:35] Speaker 04:
I just want to understand how, in my hypothetical case, I can put either, in this revocation proceeding under the NSTV rules, evidence, or I can go to a state court and try to put in evidence.

[00:22:56] Speaker 02:
So the petitioner put in the

[00:23:02] Speaker 02:
He put in the addendum, the regulations that set out the powers of the administrative law judge, and the ALJ has the authority, just similar to what a district judge would have in a civil case, to take evidence, to issue subpoenas, to consider anything that the petitioner, it can even listen to hearsay.

[00:23:20] Speaker 02:
So the petitioner has the opportunity to put, for example, in your hypothetical problems with the collection site history.

[00:23:27] Speaker 02:
He can introduce that in his own defense.

[00:23:31] Speaker 02:
And again, he made a spirited defense here.

[00:23:33] Speaker 02:
He said, I didn't see these things happen.

[00:23:35] Speaker 02:
There were these problems.

[00:23:37] Speaker 04:
But you would agree that the best evidence was not available to him?

[00:23:42] Speaker 02:
Not at all, Your Honor, for several reasons.

[00:23:43] Speaker 02:
First of all, as the agencies explained, the best evidence is a properly conducted chain of custody, which the 11th Circuit held happened here.

[00:23:52] Speaker 04:
But the 11th Circuit didn't have any record.

[00:23:54] Speaker 04:
I mean, with all due respect, and it didn't say it had it.

[00:23:58] Speaker 02:
It did.

[00:23:58] Speaker 02:
It did have a record.

[00:23:59] Speaker 02:
It had a record of everything that he put in.

[00:24:01] Speaker 02:
The only thing he didn't put in was a DNA test, and he could have requested it and didn't.

[00:24:06] Speaker 04:
But what I'm trying to understand is how would I prove my case?

[00:24:10] Speaker 04:
I can speculate.

[00:24:13] Speaker 04:
I can say that the lab has a bad history, but how can I show it in my particular case?

[00:24:21] Speaker 04:
And just because I didn't see, you know, the specimen poured and I didn't have a videotape of the chain of custody,

[00:24:30] Speaker 04:
I don't understand how you defend yourself in this case, because the presumption is the agency acts properly.

[00:24:37] Speaker 04:
Its regulations say it can't release this.

[00:24:41] Speaker 04:
It's just totally discretionary.

[00:24:44] Speaker 04:
You can't test for DNA.

[00:24:48] Speaker 04:
I mean, you can challenge, but you have one hand tied behind your back.

[00:24:52] Speaker 02:
I don't think that's accurate, Your Honor, to be honest.

[00:24:56] Speaker 02:
I think, again, the plaintiff can put on his case, and there's no guarantee that the ALJ will accept this testimony on the other side.

[00:25:05] Speaker 02:
There may be, and we don't know what the evidence would be.

[00:25:08] Speaker 02:
in a case like that.

[00:25:09] Speaker 02:
All we know here is what he put on, and it was not sufficient.

[00:25:13] Speaker 02:
The other problem is that it's DNA testing.

[00:25:16] Speaker 02:
We've introduced the affidavit from the relevant government officials from SAMHSA that say that DNA testing, in their view, is not a proper matrix for proving that urine sample is not

[00:25:29] Speaker 02:
you know, the person who submitted it.

[00:25:32] Speaker 04:
He challenged all that.

[00:25:34] Speaker 04:
I understand in terms of what your understanding was in 2000 in the preamble, all right, as to what DNA testing is capable of doing.

[00:25:42] Speaker 02:
What's in the preamble?

[00:25:43] Speaker 02:
The other thing that's in the preamble is that even if the DNA tests were to come back as saying this was not his sample, it still doesn't prove that he didn't substitute the sample.

[00:25:52] Speaker 02:
And that's the real concern here is you have pilots up in the air

[00:25:56] Speaker 02:
The FAA has a compelling interest in making sure that pilots are drug-free and that the people can get on these airlines and fly without that worry.

[00:26:05] Speaker 02:
No question about it.

[00:26:07] Speaker 02:
That's the real problem.

[00:26:08] Speaker 02:
He could have substituted the sample and a DNA test doesn't give you any means to determine whether he did or he didn't.

[00:26:15] Speaker 02:
He could have substituted the original sample or the reference sample or both of them.

[00:26:19] Speaker 04:
So Mr. Sturgell, so I'm clear.

[00:26:24] Speaker 04:
Your view of the regulatory system is such that a totally innocent person has an adequate means of challenging the test, even though he can't get the best evidence?

[00:26:50] Speaker 02:
Your Honor, this case is about DNA.

[00:26:54] Speaker 02:
Okay, and he says that he needs a DNA test to prove that the specimen was not his.

[00:27:00] Speaker 02:
And what FAA says and DOT says and HHS say is that even if you have a DNA test, even if you assume it could tell you something that it can't,

[00:27:09] Speaker 02:
as our flavor, then it doesn't matter because it still wouldn't prove that he didn't substitute the sample.

[00:27:15] Speaker 02:
And a substituted sample is a positive sample and disqualifies it from being.

[00:27:20] Speaker 04:
But my point that you don't want to.

[00:27:22] Speaker 02:
And the case is about DNA, not about whose testimony about what.

[00:27:26] Speaker 02:
I mean, in Bluestein versus Skinner and the Supreme Court cases.

[00:27:29] Speaker 04:
Could I just ask my question and ask you to answer it?

[00:27:32] Speaker 02:
I'm sorry.

[00:27:33] Speaker 04:
My question is, under the DOT regulations, they give four examples of why you can't be sure whose urine this is.

[00:27:44] Speaker 04:
He could have substituted it.

[00:27:46] Speaker 04:
He could have doctored it.

[00:27:47] Speaker 04:
He could have done all these things.

[00:27:49] Speaker 04:
So he's trying to rebut those presumptions.

[00:27:56] Speaker 04:
And the hypothetical I'll give you is if he were able to test the urine,

[00:28:02] Speaker 04:
let's assume he's a Caucasian male, shows that it's the urine of an Asian or African-American male.

[00:28:11] Speaker 04:
That's my hypothetical.

[00:28:14] Speaker 04:
There's no way he's going to have an opportunity to demonstrate that, because all the presumptions under the regulatory system preclude him from getting that information.

[00:28:27] Speaker 04:
So he goes to the state court and tries to do it, and he still can't get it.

[00:28:32] Speaker 04:
That's what I'm concerned about is, just in my hypothetical, where a mistake has been made, there's no way to prove that mistake.

[00:28:42] Speaker 02:
Our answer is, even if there has been a mistake made, that evidence doesn't tell you who is responsible for the mistake.

[00:28:50] Speaker 02:
And it varies.

[00:28:51] Speaker 02:
And the government thinks it's more likely than not that it's his having submitted a substituted specimen that is the reason for the mistake.

[00:29:00] Speaker 03:
Would you agree with this alternative way of responding to Judge Rodgers?

[00:29:05] Speaker 03:
The statute or the regulation reflects the determination that DNA evidence is not good evidence for this purpose.

[00:29:15] Speaker 02:
That's correct.

[00:29:16] Speaker 02:
And that's what the Flagellic Declaration says.

[00:29:18] Speaker 03:
That may be the only way possible to make this case, but it's been excluded for whatever reason as not good evidence.

[00:29:29] Speaker 03:
I don't know when this regulation was written, but the quality of DNA evidence has improved greatly over the years.

[00:29:35] Speaker 02:
Well, again, the only evidence you have in this record is the declaration from SAMHSA that we put in.

[00:29:40] Speaker 02:
The plaintiff, we think, would have the burden of proof, has given you... The only thing he cites is the National Academy of Sciences article, which doesn't discuss urine testing in the DNA context at all.

[00:29:53] Speaker 04:
He cites the 2000 preamble to the rule.

[00:29:57] Speaker 02:
Well, right, that supports us.

[00:29:59] Speaker 04:
That's where HHS explains... No, he says that's outdated, for the very reason Judge Ginsburg just mentioned.

[00:30:04] Speaker 02:
Well, the Flagel Declaration was submitted within the last year.

[00:30:07] Speaker 02:
That tells you the up-to-date view of SAMHSA, which is the government agency that has the expertise and the responsibility for figuring these things out.

[00:30:15] Speaker 00:
I didn't understand the government's explanation.

[00:30:19] Speaker 00:
as meaning that DNA testing wasn't far enough progressed at that time and that now it's better.

[00:30:29] Speaker 00:
But the argument was even if DNA testing were perfect, it wouldn't matter because there's no way to know whether the sample that he's providing it against was actually his.

[00:30:43] Speaker 00:
It has nothing to do with the quality of DNA testing.

[00:30:46] Speaker 00:
Isn't that right?

[00:30:47] Speaker 00:
Well, that's your argument is.

[00:30:49] Speaker 00:
Yes.

[00:30:51] Speaker 00:
So this doesn't change if today DNA testing were better.

[00:30:55] Speaker 00:
Correct.

[00:30:56] Speaker 00:
All right.

[00:30:56] Speaker 00:
Now let me ask you about the process here.

[00:30:59] Speaker 00:
Is there a hearsay rule before the ALJ?

[00:31:03] Speaker 00:
No, there isn't.

[00:31:05] Speaker 00:
There isn't.

[00:31:08] Speaker 00:
ALJ have the ability to call in each of the people in the chain of custody to testify.

[00:31:14] Speaker 02:
Yes, and in fact, they did testify in this case.

[00:31:17] Speaker 00:
So in a normal drug case, which we see here thousands of times, drugs are seized.

[00:31:24] Speaker 00:
Police don't know what kind of drugs they are.

[00:31:27] Speaker 00:
In fact, they may not be drugs at all.

[00:31:29] Speaker 00:
They might be talcum powder rather than heroin.

[00:31:33] Speaker 00:
They're seized.

[00:31:34] Speaker 00:
They're put in a heat-sealed envelope.

[00:31:36] Speaker 00:
They're then passed

[00:31:38] Speaker 00:
to the laboratory, which signs for them, that then passed to the technician, who signs for them and opens them and writes, I have now opened them.

[00:31:46] Speaker 00:
I have just applied the appropriate reagents.

[00:31:50] Speaker 00:
Turns out they're actually heroin.

[00:31:52] Speaker 00:
It is heroin.

[00:31:53] Speaker 00:
It is not powder.

[00:31:58] Speaker 00:
That's typically how we decide.

[00:32:00] Speaker 00:
And that's the difference between somebody going to jail or not going to jail, correct?

[00:32:04] Speaker 02:
Correct.

[00:32:06] Speaker 00:
Can they do the same thing here?

[00:32:08] Speaker 00:
And sometimes it turns out that there's a missing piece in the chain of custody.

[00:32:13] Speaker 00:
The lab technician failed to write on it.

[00:32:16] Speaker 00:
It wasn't really heat sealed, anything like that.

[00:32:18] Speaker 00:
In those cases, the defendant is acquitted.

[00:32:21] Speaker 00:
Is the same process here?

[00:32:23] Speaker 00:
Yes.

[00:32:24] Speaker 00:
So the only question is, since this is a process that we use to decide whether people go to jail in drug cases or not, the only question really is whether DNA makes a difference.

[00:32:36] Speaker 00:
That is, improves the chances.

[00:32:39] Speaker 00:
And I take it the government's argument is

[00:32:42] Speaker 00:
whether it's the most persuasive argument or not.

[00:32:44] Speaker 00:
But the government's argument is that you can't control the chain of custody with respect to a DNA test.

[00:32:51] Speaker 00:
You don't know where the original stuff came from other than his signing that it was him.

[00:32:55] Speaker 00:
And you don't know what happens once you release this to another lab.

[00:32:58] Speaker 00:
Is that right?

[00:33:02] Speaker 00:
Correct.

[00:33:02] Speaker 00:
OK.

[00:33:02] Speaker 00:
I understand the rationale.

[00:33:03] Speaker 00:
Further questions?

[00:33:05] Speaker 04:
So when he moves for reinstatement in, what is it, two years?

[00:33:09] Speaker 02:
Yes, he may.

[00:33:11] Speaker 04:
And his record shows he has this positive drug test.

[00:33:17] Speaker 04:
Then what?

[00:33:19] Speaker 02:
Well, then he can be reinstated.

[00:33:20] Speaker 02:
He can get his medical certificate.

[00:33:22] Speaker 02:
If he passes another drug test and goes through the training and the drug rehab program, so he has his medical certificate and he can seek employment in the industry.

[00:33:34] Speaker 02:
At that point, it's up to the employers whether to hire him, but he does have his license back and can seek employment.

[00:33:42] Speaker 03:
When you respond to Judge Garland, the same procedural steps are available, were available here, as would be in a criminal trial.

[00:33:53] Speaker 03:
Were you referring to the proceedings before the ALJ?

[00:33:58] Speaker 02:
Right, and the appeal rights as well.

[00:34:01] Speaker 02:
I mean, if he didn't like what, and he didn't like what the ALJ said, he had a right to an administrative appeal, and then an appeal in the 11th Circuit, and he's got a full- Is there an administrative appeal in which he could introduce new evidence?

[00:34:12] Speaker 02:
No.

[00:34:12] Speaker 03:
Okay, so this was the ALJ here?

[00:34:14] Speaker 03:
Right.

[00:34:18] Speaker 00:
Okay, thank you.

[00:34:19] Speaker 00:
Okay.

[00:34:20] Speaker 00:
Thank you, Your Honor.

[00:34:22] Speaker 00:
All right, I don't have any more time, but we'll give you another minute anyway.

[00:34:24] Speaker 00:
Take another minute anyway.

[00:34:28] Speaker 01:
Okay, next for a minute.

[00:34:33] Speaker 01:
Respectfully, what you just were told is really not the case.

[00:34:37] Speaker 01:
There is no way to submit any other evidence of what happened at the NTSB ALJ hearing.

[00:34:43] Speaker 01:
The board doesn't have any right to conduct any sort of trial at all.

[00:34:47] Speaker 01:
There are five members.

[00:34:48] Speaker 01:
The board doesn't.

[00:34:49] Speaker 01:
What about the ALJ?

[00:34:50] Speaker 01:
The ALJ can only take the charge the FAA brings.

[00:34:55] Speaker 01:
It's not a DOT charge.

[00:34:56] Speaker 01:
They don't go looking at the unconstitutionally unconstitutional.

[00:35:02] Speaker 00:
I'm not on the race judicata or collateral.

[00:35:04] Speaker 00:
I'm on the question of the fairness of the proceeding.

[00:35:07] Speaker 01:
The fairness of the proceeding is limited just to the charge brought by the FAA.

[00:35:12] Speaker 04:
But can you ask the ALJ to subpoena the people from the lab?

[00:35:17] Speaker 01:
Yes, you can ask the ALJ for a subpoena from the lab, but that still will not get you to what we need to know.

[00:35:26] Speaker 01:
And they keep bringing up this concept that he's going to substitute somebody else's urine.

[00:35:33] Speaker 01:
Why would he do that if he knows it might be positive or something?

[00:35:37] Speaker 01:
All you have to do is do what every other state and federal court are doing with DNA.

[00:35:41] Speaker 01:
It's either him or it's not him.

[00:35:42] Speaker 01:
If it's not him, well, guess what?

[00:35:44] Speaker 01:
He's going to win his enforcement case.

[00:35:46] Speaker 01:
Because it's not him, it's somebody else.

[00:35:49] Speaker 01:
why in the world they're not going ahead and changing this 1990, mid 1990 regulation that they never really have changed.

[00:35:57] Speaker 01:
It's always been the same thing about chain of custody.

[00:36:00] Speaker 01:
It's baloney.

[00:36:00] Speaker 01:
The chain of custody the state judge is planning to do is the same custody that the Quest and Concentra had when they brought the enforcement case with their laboratory sample.

[00:36:11] Speaker 01:
And it's no worse or better.

[00:36:13] Speaker 01:
It's the same thing.

[00:36:14] Speaker 01:
We're going to ensure it's going to be 100%.

[00:36:16] Speaker 00:
I don't mean to imply that their method is the best.

[00:36:24] Speaker 00:
The only question is whether their method is a rational one.

[00:36:28] Speaker 00:
And if you want to change the regulation, because you have a better way to do it,

[00:36:32] Speaker 00:
You can file a petition for changing the DOT and FAA's regulations, or HHS's regulations.

[00:36:39] Speaker 00:
But this court also has the authority to... Only if our authority is limited to overturning the regulation if it's arbitrary and capricious, not if it's not the best method.

[00:36:49] Speaker 01:
Well, I think it's totally arbitrary and capricious to not allow somebody to have his identity.

[00:36:54] Speaker 01:
I mean, where else can you go to lose your whole career, millions and millions of dollars, your family's looking at you like, how am I going to pay the bills?

[00:37:01] Speaker 01:
I mean, this is just really unbelievable, to be honest with you.

[00:37:04] Speaker 01:
I mean, this is the most arbitrary and capricious situation I've ever seen.

[00:37:09] Speaker 01:
It's certainly not in accordance with what I consider the Constitution to be in the United States.

[00:37:14] Speaker 01:
I really don't.

[00:37:15] Speaker 01:
OK, further questions?

[00:37:16] Speaker 01:
All right, thank you.

[00:37:17] Speaker 01:
We'll take a matter under submission.