[00:00:00] Speaker 02:
Case number 21-1062 Ed Al, Edel W. Pham Petitioner versus National Transportation Safety Board and Federal Aviation Administration.

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Mr. Armstrong for the petitioner, Mr. Koppel for the respondent, FAA.

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Morning, counsel.

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Mr. Armstrong, please proceed when you're ready.

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May it please the court.

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My name is Alan Armstrong.

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I represent Edel Pham, the petitioner in case number 21162, the respondent in 21162.

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three.

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Can I ask you just a slide over in front of the microphone?

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Yes, sir.

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Thank you.

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Thank you.

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Mr Fam appeals from an order of the National Transportation Safety Board of January 4 2021 finding he had refused a Department of Transportation drug test by failing to remain to complete the test after he provided a urine specimen that was less than the amount required by the regulations, which I think is 45 milliliters.

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The board made a finding of violations of 49 CFR 4191A2 failing to remain in 120.70 engaging in conduct, but reduced the sanction from a revocation to a suspension of 180 days.

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This is authorized by 14 CFR 120.11 subparagraph B2.

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The board's order must be vacated as not being supported by substantial evidence.

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On August 11, 2020, Mr. Pham reported for a D.O.T.

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drug test providing less than 45 milliliters and the D.O.T.

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regulations require, it says must, must urge, require the test collector, in this case Lois West, to warn Pham

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He has 3 hours to consume 40 ounces of fluid to provide the specimen.

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She did not give the warning on page joint appendix 277 and 296.

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She said not once, but twice.

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I don't remember.

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I'm not sure.

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That's your unimpeached testimony in the record.

[00:02:13] Speaker 01:
Yes, counsel, but I guess the question is the materiality of that finding.

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So why does that matter with respect to the facts that were found concerning his refusal, which did not include any sort of concern about

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the omission of the, what you're calling is the shy bladder instruction, is that what?

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Yes.

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So I did not take any of the bodies that have reviewed this matter to put any real weight on the shy bladder omission with respect to the refusal.

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They say, regardless, he knew that if he left, that was going to be considered a refusal.

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And he did.

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So why aren't those the material facts for the finding of refusal?

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Judge Jackson, thank you for your question.

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Here's my response.

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You cannot read 49 CFR 4191A2 in a vacuum.

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You have to read it in the context of 49 CFR193B2, which says that she must urge him to consume 40 ounces of fluid over three hours.

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And he testified twice in the record at pages 370 and page 371 in the record.

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He testified, had he given that warning, he would have remained at the facility.

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And that's just like Dr. Pasternak and Pasternak versus Huerta and Pasternak versus NTSB quoted in my brief, Your Honor.

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I thought the Pasternak case had some important differences though.

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I don't think so.

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I really don't think so, Your Honor.

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Well, didn't, first of all, weren't the guidelines different at that time that they had to give?

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that they had to give the warning about leaving being a refusal, and they didn't in this case.

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Here's how I see Pasternak in relation to family, Your Honor.

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And Pasternak Malatavos said he ran out before I could give him the warning.

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And the board said that we are relying upon her credibility to find Pasternak is guilty.

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And this court, this court said that's not material.

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Because it's implausible that she could not give him a warning.

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He can't run that fast.

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And by the same token, in this situation, we cannot ascribe credibility to Ms.

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West because she has none.

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The board said, number one, she had no independent recollection of the events of that day.

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They said all she remembered was that he came and left the facility.

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She said twice she didn't give him a shy bladder warning.

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And she admitted she may have given him permission to go to lunch, Your Honor.

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So you have to look at the record in totality.

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She had no credibility.

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And that's why the order the board is not supported by substantial evidence is because there is no relevant evidence.

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that a reasoned mind would rely upon in reaching a conclusion, and that's why you've got to reverse the board.

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But Mr. Armstrong, here's my problem that I hope you appreciate, which is that we are three layers removed from the facts that you say should have been interpreted in a different way.

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So I don't know that the appropriate standard at this stage is for us to look

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almost in the first instance at the transcripts of the hearing or considering the facts as though no one else has spoken to them.

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We have findings by the administrative law judge who took evidence and he said that the Ms.

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West told your client that if he left that would be considered a refusal and then he left.

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And he found those findings to be the significant facts and also the fact that he had not produced a sufficient sample.

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He said, those are the significant facts for the finding of refusal.

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I don't know that we have the authority as an appellate body to do anything other than credit those findings of fact.

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Judge Jackson, I respectfully disagree.

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I'll tell you why.

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I want to speak in the microphone so Judge Rogers can hear you.

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I beg your pardon?

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Yes, just make sure Judge Rogers can hear you.

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I can hear.

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Okay.

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Judge Jackson, I respectfully disagree for these reasons.

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You have authority under five USC 706 A and B to reverse an administrative law decision that is not supported by substantial evidence.

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And this court in the Van Dyke case quoted in my brief says substantial evidence is evidence that a reasoned mind would accept as supporting a conclusion.

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And here there is no because she has no memory

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The board said she had no memory.

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You cannot credit her testimony.

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I'm not asking you to be a trial court judge.

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I'm asking you to be an appellate court judge under 5 USC 706 2A.

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This decision is arbitrary, capricious, and abusive discretion, not supported by evidence.

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A was contrary to law.

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Look at finding a fact number five.

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Finding a fact number five in the opinion is.

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that when he didn't provide 45 milliliters, he refused.

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That is not true.

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That is not the law and never has been the law.

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That is not true.

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Just because you can't provide 45 milliliters of urine on the spot does not mean you go to the violation.

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And the board said it did.

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That's not right.

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That is only true after you're given the shy boarder warning.

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It's only true after you're given three hours.

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It's only true after you get 40 ounces of water.

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That never happened.

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So all I'm asking you to judge, you judge, I'm not asking you to be a trial court judge.

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I'm asking you to be an appellate court judge and find that this record is not supported by substantial evidence to justify the conclusion rendered by the board.

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That's all I'm asking.

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May I continue?

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Okay.

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Miss West testified that she was a float.

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She went from location to location and worked in a doctor's office for three years, during which time she did not administer drug screening.

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On direct examination, and this is finding a fact number six, she testified that when Mr. Pham returned, he would need a new referral form.

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If you return, you therefore have to leave.

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And under Pasternak, he had implied permission to leave.

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Judge Mullins made six findings of fact.

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One, this is a pre-employment test.

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Two, FAM had not been trained in any drug testing policies of its prospective employer.

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Three, there was no requirement that FAM be trained.

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Four, FAM provided a specimen that was not a sufficient quantity.

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Five, FAM was advised that providing a specimen of less than 45 milliliters was a refusal, which we've already covered the fact that that's not right.

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That's wrong.

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That's not the law.

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Never has been.

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And number six,

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FAM was advised if he left, he could return with a new referral form.

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The board found this was confusing.

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The board found number one, Ms.

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West had no independent recollection.

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That's a joint appendix 534.

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The board found that all she remembered is he came to the facility and left.

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That's a joint appendix 535.

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That's why she admitted she did not remember giving FAM a shy bladder instruction.

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That's a joint appendix 532 and 535.

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And number four, West admitted it's possible Pham asked if he could go to lunch at Joint Appendix 536.

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Reducing the sanction from revocation to suspension, the board observed, first, there is no clear evidence in the record.

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The test collector urged respondent to drink up to 40 ounces of fluid to produce another sample within the three-hour period, which is part of the shy bladder process, as at Joint Appendix 559.

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Second, as discussed above, the law judge found the respondent was advised that if he left, he would have to have another confirmation form when he returned.

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Ipso facto, if you return, you first must leave.

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The board went on to say, there existed ambiguity surrounding the consequences of his departure.

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There existed ambiguity surrounding the consequences of his departure.

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and the administrator did not prove that the test collector explained the shy bladder procedures.

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The unique circumstances of this case lead us to reduce this respondent sanction to a 100-day suspension.

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That's a joint appendix 560.

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The board further made this note, quote, the board believes that the discussion between the test collector and respondent would create confusion

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for a reasonable person about whether they could return for a new drug test as long as they obtained a new form.

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And this would would have interpreted it to mean that a new test was possible.

[00:11:37] Speaker 01:
So, Mr. Armstrong, yes, I've read the record.

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I've read the opinions that you're reading to us.

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What I'd like to ask you is about the mitigation of the sanction by the NTSB.

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Yes, is it your view that they have the authority to do that to change this is so it's not an up or down proposition.

[00:12:00] Speaker 03:
Yeah, I'll tell you why under under under 49 USC 4479 D3.

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49 USC section 4479 D3.

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It specifically says the board shall not defer to the FA on findings of fact.

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It specifically says that I know that because I helped author the pilots Bill of Rights that was passed by the Congress in 2012.

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Right.

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I'm not asking you about findings of fact.

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I'm asking you about the sanction.

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Yes.

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So assuming that the board agreed with the ALJ on the facts, and I know that you dispute and you say there isn't substantial evidence, but if we disagree with you on that, and we find that the board rightly upheld the refusal determination,

[00:12:47] Speaker 01:
What authority does it have to say, nevertheless, we think Mr. Pham was confused, and as a result, instead of the FAA's suggested sanction or proposed sanction, we're going to do something else?

[00:13:04] Speaker 01:
Is there legal authority somewhere for them to mitigate a sanction after they have found that there has been a violation?

[00:13:12] Speaker 03:
Millennium propeller systems administrator versus Millennium propeller systems.

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2006 Westlaw 979342.

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This is a 2006 case.

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Here's what the board said in Millennium.

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We disagree with the administrators analysis when such difference is required.

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A lack of qualification is a finding of fact that does not command deference.

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So the board was not required to defer to administrators' finding of revocation.

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They had absolute authority to reduce the sanction from a revocation to a suspension, Your Honor.

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In that case, if I read it is about the sanction and not a finding of this is a millennium helicopter was a was a case where yes, the FAA took the position that they had to go along with their finding.

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The board had to defer to the FAA and the board said, no, we don't.

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No, we don't.

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So in my opinion, administrator versus millennium propeller systems is dispositive of the question.

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Just ask me your honor.

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All right.

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So recognize the board found number one that West had no independent recollection of the drug test.

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Number two, all she remembered is that he came and left.

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And three, it's possible FAM asked West if he could go have lunch.

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The board's rejection of FAM's testimony and the crediting West's testimony is arbitrary and capricious under 5 USC 706 2A.

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It requires that the order be vacated.

[00:14:57] Speaker 04:
I know you wanted to reserve some time for.

[00:14:59] Speaker 03:
Yeah, I did reserve five minutes runner.

[00:15:01] Speaker 04:
Is if I if I use 10 minutes, you used quite a bit more than 10 minutes, but your will give you a little bit of time for rebuttal.

[00:15:08] Speaker 04:
OK, if you'd like, unless my colleagues have further questions for you at this time.

[00:15:12] Speaker 04:
Thank you, thank you.

[00:15:13] Speaker 04:
It will help from the government now.

[00:15:17] Speaker 04:
A couple.

[00:15:29] Speaker 05:
Morning, Your Honors.

[00:15:30] Speaker 05:
May it please the Court, I'm Josh Koppel on behalf of the FAA.

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I want to make sure to address the FAA's petition for review and the NTSB's reduction of Mr. Pham's sanction, but I'll start with Pham's petition.

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Pilots have a responsibility to acquaint themselves with all FAA regulations in light of them.

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to be proactive when there's a problem to be cautious.

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And if Mr. Pham couldn't immediately produce a sufficient urine sample, the FAA could reasonably expect him to stay at the facility, ask questions, and figure out what to do next.

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Particularly when he was told that leaving would constitute a refusal.

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But he didn't do that.

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The FAA reasonably takes this conduct seriously.

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Not only did Pham's actions demonstrate a lack of judgment on his part, but they undermined the integrity of the drug testing program.

[00:16:18] Speaker 01:
Was there a legal requirement for Ms.

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West to give him a shy bladder instruction?

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This honorable court will now take a brief recess.

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This honorable court is in session again.

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Be seated, please.

[00:16:41] Speaker 04:
Welcome back, Mr. Topol.

[00:16:44] Speaker 04:
Please proceed where we were.

[00:16:46] Speaker 05:
Sure.

[00:16:46] Speaker 05:
I'll pick up with Judge Jackson's question about the side bladder regulation.

[00:16:50] Speaker 05:
The regulation requires the test collector to urge the employee to drink up to 40 ounces of water, reasonably distribute over three hours.

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This isn't a side bladder warning or a particular set of instructions.

[00:17:03] Speaker 05:
And to be clear, the test collector testified that she believed that she did deliver this instruction and urge Mr. Pham to drink water.

[00:17:13] Speaker 05:
She just couldn't recall for certain that she did.

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So then TSB found that there was not clear evidence that she had delivered that instruction.

[00:17:22] Speaker 01:
What difference does that make in terms of the finding with respect to refusal?

[00:17:27] Speaker 01:
It doesn't make any.

[00:17:28] Speaker 05:
The refusal regulation is a separate regulation which says that it's a refusal if the employee leaves the testing facility before the testing process is complete.

[00:17:37] Speaker 05:
So it doesn't require the test collector to first have delivered any particular warning or any particular instruction.

[00:17:44] Speaker 05:
And the NTSB certainly recognized that.

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It made a finding that Mr. Pham refused the

[00:17:51] Speaker 05:
the drug test by leaving the testing facility, uh, you know, and that the potential failure of the test collector to urge Mr. Famp to drink water was really irrelevant to that.

[00:18:03] Speaker 04:
Ask what would have happened in a situation?

[00:18:05] Speaker 04:
Um, I know that's not, it's not the case that we have before us, but suppose he were to ask before he left.

[00:18:11] Speaker 04:
Um, I got plans of, I've got a lunch plans.

[00:18:13] Speaker 04:
I just want to make sure that when I come back, I can restart the test.

[00:18:17] Speaker 04:
And if the person who's working with him says,

[00:18:20] Speaker 04:
Yeah, I think you're gonna have to start over.

[00:18:21] Speaker 04:
But yes, you can restart the test and he leaves with that kind of misperception.

[00:18:28] Speaker 04:
How would things have played out?

[00:18:29] Speaker 04:
Would it still be a refusal to finish the test?

[00:18:31] Speaker 05:
So, as Your Honor mentioned, you know, that is not this case.

[00:18:34] Speaker 05:
Ms.

[00:18:35] Speaker 05:
West testified that she told him he could not leave to go to lunch.

[00:18:37] Speaker 05:
Right.

[00:18:38] Speaker 05:
I think that it would still be a refusal.

[00:18:41] Speaker 05:
I think that the FAA in its enforcement discretion, in its prosecutorial discretion, probably would not take enforcement action in that case.

[00:18:48] Speaker 05:
But it would be a refusal under the regulations.

[00:18:52] Speaker 01:
I ask you if the FAA chooses to take exercise its enforcement discretion to bring charges, does it always, um, ultimately require revocation in a situation in which those charges are proven or does it have similar discretion about what the sanction should be based on the particular facts and circumstances of the case?

[00:19:16] Speaker 05:
The regulation permits the FAA to suspend or revoke

[00:19:20] Speaker 05:
the certificate of an airman who has refused a drug test.

[00:19:24] Speaker 05:
The FAA's policy is that generally revocation is the appropriate remedy.

[00:19:29] Speaker 05:
And the NTSB has, you know, always, until this case, the NTSB has always affirmed revocation of an airman's certificates after he's been found to have refused a drug test.

[00:19:39] Speaker 05:
And the NTSB has explained that unless revocation were the predictable consequence for an airman who refuses a drug test, an airman could simply evade a positive drug test result by refusing to.

[00:19:51] Speaker 01:
I understand, but one thing I noticed was that in the FAA's enforcement memo, emergency order, they seem to rely on at least at one point a fact, and I'm looking at A2,

[00:20:10] Speaker 01:
The collector explained that you would have up to three hours to provide a urine sample.

[00:20:14] Speaker 01:
So one of the facts that underlies their enforcement is that the shy bladder instruction was given.

[00:20:23] Speaker 01:
We then proceed to the actual proceeding.

[00:20:26] Speaker 01:
The ALJ says the evidence isn't clear.

[00:20:28] Speaker 01:
The NTSB doesn't rely on that in terms of the finding of refusal.

[00:20:33] Speaker 01:
And so I'm wondering whether there's ever been a circumstance or there could be a circumstance in which after the NTSB ultimately determines that that warning or that instruction was not given, they send the matter back to the FAA for a determination of whether they intend to continue with the revocation or do a suspension.

[00:20:54] Speaker 05:
I'm not aware of that situation here.

[00:20:58] Speaker 05:
You know, um, the ALJ already, you know, did not make this finding that West had, uh, given the side bladder instruction, but the FAA continued to pursue its position before the NTSB on appeal that revocation was the appropriate remedy.

[00:21:12] Speaker 05:
So, you know, the FAA, even, you know, on the set of facts that the ALJ found without appealing, you know, and any adverse findings, there really was none by the ALJ.

[00:21:22] Speaker 05:
the FAA continued to take the position that revocation was the appropriate remedy.

[00:21:26] Speaker 05:
And so that position in itself, in addition to this original decision in the emergency order of revocation, is entitled to deference.

[00:21:33] Speaker 01:
So tell me about that.

[00:21:34] Speaker 01:
Why do you say that?

[00:21:37] Speaker 01:
I thought the statute was changed in terms of requiring the NTSB to give deference to the FAA.

[00:21:46] Speaker 05:
It was, but the legislative history is clear.

[00:21:51] Speaker 05:
When the pilot bill of rights removed that deference language, the Congress only did that because it understood that under prevailing case law, under Martin v. Occupational Safety and Health Review Commission, that the NTSB was nevertheless bound to defer to the FAA's interpretations of regulations.

[00:22:09] Speaker 05:
And therefore, the statutory language was superfluous.

[00:22:14] Speaker 05:
In addition, with regard to sanction, it's not pursuant to the statute, but rather pursuant to Supreme Court case law and this court's case law, that a court is bound to defer to an agency's determination of the appropriate sanction.

[00:22:30] Speaker 05:
agency to figure out which sanction is best going to accomplish the purpose of the statute.

[00:22:35] Speaker 05:
So here, it's for the FAA to determine whether revocation or suspension is best going to ensure the safety of the airways, best going to deter other pilots from refusing drug tests or evading positive drug tests.

[00:22:53] Speaker 01:
So what is the role of the NTSB in this scheme, you say, because the FAA was also acting as, quote unquote, the prosecutor, right?

[00:23:01] Speaker 05:
That's right.

[00:23:02] Speaker 01:
For this purpose.

[00:23:03] Speaker 05:
So the NTSB has an independent adjudicatory function, and as the Supreme Court cited Martin, you know, with regard to a separate scheme, but the NTSB's role is akin to that of a court reviewing agency action.

[00:23:17] Speaker 01:
But a court would ordinarily take into account the sanction and be the one to impose it.

[00:23:22] Speaker 05:
Well, not with regard to an agency enforcement action.

[00:23:25] Speaker 05:
So in American Power and Light, which we cite in our brief, the Supreme Court said that the appropriate standard of review is whether the sanction is unwarranted in law or unjustified on the facts.

[00:23:42] Speaker 05:
So a court has to defer to the agency's sanction unless it's unlawful.

[00:23:47] Speaker 05:
Here, the regulation permits the revocation of a pilot certificate

[00:23:51] Speaker 05:
if he's refused a drug test or if it's unreasonable.

[00:23:55] Speaker 05:
Here the FAA's determination that revocation was appropriate is certainly not unreasonable for all these reasons that I've been mentioning in the specific deterrence of Mr. Pham certainly or the possibility that Mr. Pham was trying to evade a positive drug test result or the broader deterrent purpose of ensuring that other pilots don't try to evade a positive drug test result by simply refusing a drug test.

[00:24:18] Speaker 04:
So is your view that the board

[00:24:20] Speaker 04:
didn't give the deference or that they did give the deference, but then they erred in their conclusion.

[00:24:28] Speaker 05:
The board recognized that it had to defer to the FAA, but it didn't give the deference, I would say.

[00:24:35] Speaker 05:
It cited that deferential standard.

[00:24:37] Speaker 05:
It cited Martin, but it simply didn't apply deference.

[00:24:40] Speaker 05:
It didn't consider the FAA's reasons for imposing revocation.

[00:24:44] Speaker 05:
It didn't explain why revocation would be unreasonable in these circumstances.

[00:24:49] Speaker 05:
That's the standard that it was bound to.

[00:24:50] Speaker 04:
What do you mean it didn't explain why revocation would be unreasonable?

[00:24:54] Speaker 04:
Because we know why the NTSB thought that revocation shouldn't be imposed here.

[00:25:01] Speaker 05:
The NTSB explained why it thought that the 180-day suspension was the most appropriate remedy, but it didn't explain why revocation would not be an appropriate remedy or a reasonable remedy.

[00:25:11] Speaker 05:
And to be clear, even the two reasons that the NTSB cited

[00:25:15] Speaker 05:
or why a 180-day suspension was perhaps a better remedy really doesn't hold up.

[00:25:23] Speaker 05:
So as the NTSB itself recognized, the failure of the test collector, the possible failure of the test collector to give the shy bladder instruction doesn't mitigate, doesn't

[00:25:34] Speaker 05:
excuse the airman's refusal and his choice to leave the testing facility before the testing process was complete.

[00:25:42] Speaker 01:
But in fairness, I mean, I'm looking at A560 where this is in the NTSB's decision where it says the interaction of the mitigating factors compounded in a way that revocation is not a reasonable sanction.

[00:25:58] Speaker 01:
And the way they describe it and discuss it, it sounds as though they felt looking at the facts that Mr. Fan may have been confused by the test collector into believing that he could leave not withstanding the fact that she may have told him that leaving would be a refusal.

[00:26:16] Speaker 05:
So you're correct.

[00:26:17] Speaker 05:
The NTSB said it was not a reasonable sanction.

[00:26:21] Speaker 05:
I don't think that the NTSB really applied the correct differential standard.

[00:26:25] Speaker 05:
Didn't go through the FAA's reasoning and explain why.

[00:26:28] Speaker 05:
I don't think he gave sufficient reasons for why replication would be unreasonable.

[00:26:33] Speaker 04:
In addition, this is part of the reason why I asked the question earlier about the situation in which the person who leads is actually told that the

[00:26:42] Speaker 04:
person they're working with, by the person they're working with, that, yeah, I think if you come back, I think you should be able to restart.

[00:26:49] Speaker 04:
Because in that situation, you could still say the same thing you're saying now, which is that the default remedy in a situation in which there's a refusal to leave, a refusal to stay rather, sorry, which even that hypothetical would implicate, as you said, the default sanction would be revocation.

[00:27:07] Speaker 04:
And so you could just say, well, look, that's just what the FAA says is the sanction is revocation.

[00:27:12] Speaker 04:
And so it wouldn't be within the bounds of the NTSB's discretion to overturn a revocation order.

[00:27:20] Speaker 04:
But it seems like it would be.

[00:27:23] Speaker 05:
I think that certainly the NTSB has that power in the appropriate case, where it truly is unreasonable.

[00:27:29] Speaker 05:
I don't think the revocation here was unreasonable.

[00:27:32] Speaker 05:
And to be clear, I don't think Mr. Pham, when he testified at the hearing, did not testify that he was confused by this

[00:27:41] Speaker 05:
instruction that he might be able to return with a new test order form.

[00:27:43] Speaker 05:
What he testified was that he came back with an insufficient urine sample, said, I've got to go.

[00:27:48] Speaker 05:
I'd like to go to lunch.

[00:27:49] Speaker 05:
Is that all right?

[00:27:50] Speaker 05:
And the test collectors said, sure, absolutely go ahead.

[00:27:54] Speaker 05:
And the ALJ rejected that testimony is not credible.

[00:27:59] Speaker 05:
And the NTSB affirmed that credibility determination.

[00:28:02] Speaker 05:
So this argument that he was confused by this other statement

[00:28:08] Speaker 05:
And then there was perhaps some implicit permission to leave.

[00:28:11] Speaker 05:
That's really not something that Mr. Pham testified to.

[00:28:14] Speaker 05:
That's something that the NTSB came up with.

[00:28:17] Speaker 05:
And, you know, while perhaps that would itself be a reasonable determination and perhaps a 180-day suspension might be a reasonable sanction, that's not the standard here.

[00:28:28] Speaker 04:
Are you asking us to direct the board to

[00:28:32] Speaker 04:
affirm the sanction or are you just asking us to vacate and remand for the board to afford deference?

[00:28:39] Speaker 05:
I think that the evidence and arguments before this court are sufficient for the court to hold that the FAA's determination to revocation is appropriate was a reasonable determination, and therefore to affirm the FAA's revocation order.

[00:28:52] Speaker 00:
Could I just ask you, as part of your argument that to the extent after the statutory change in the legislative history,

[00:29:06] Speaker 00:
the board applied the wrong deferential standard in the sense that the FAA has taken the position that pilots and this particular job for which Mr. Pham was applying particularly sensitive area and therefore any failure by the pilot to adhere with the plain text of the regulation regardless

[00:29:36] Speaker 00:
of whether he has been advised of the shy bladder point is grounds to revoke because, and one of the FAA commissioners wrote that concurring opinion emphasizing the point, the burden is on the applicant to know the regulation.

[00:29:58] Speaker 00:
Sort of ignorance of the law here is not an excuse given the nature of the position

[00:30:04] Speaker 00:
for which his pilot license entitles him.

[00:30:08] Speaker 00:
So is that what you meant by saying the board had a deference standard, but it simply didn't take cognizance of the FAA's total opinion as to how this regulation should be applied?

[00:30:28] Speaker 05:
That's absolutely correct, Your Honor.

[00:30:32] Speaker 05:
You know, among other things, as you mentioned, the airman is charged with knowledge of the regulations.

[00:30:37] Speaker 05:
So he should have known that when he left the testing facility, you know, aside from the fact that he was expressly informed by the test collector, he should have known anyway that when he left the testing facility before the testing process was complete, that would be deemed a refusal.

[00:30:49] Speaker 00:
He also should have known- And I'm just focusing on the fact that the FAA's view is one of, I'll call it strict liability here.

[00:30:59] Speaker 00:
There sort of are no excuses.

[00:31:01] Speaker 00:
You either comply with the plain text of the regulation, and it's your burden.

[00:31:06] Speaker 00:
And you can ask the test administrator, well, don't you have to advise me of the shy bladder and my options?

[00:31:16] Speaker 00:
But I thought the FAA's position was it's the applicant's burden here.

[00:31:22] Speaker 00:
So that that's what the board failed to address when it said, well, we think there may have been some confusion here.

[00:31:31] Speaker 00:
In other words, the burden to clarify confusion could be on the applicant.

[00:31:38] Speaker 00:
And to the extent he asked questions and she gave them, he knew at least that if he left, he'd have to have a new application.

[00:31:48] Speaker 00:
And that if he left without completing the test, giving me the right amount of the sample, then that would be deemed a refusal.

[00:31:59] Speaker 05:
I see my time is up, if I may.

[00:32:00] Speaker 05:
You know, the board did see it, that's right, as Mr. Pham's burden to establish any affirmative defense.

[00:32:10] Speaker 05:
It also, you know, I don't think that there

[00:32:13] Speaker 05:
I don't know that I can talk about the burden to, you know, whose burden it was to make clear on what his obligation was at this point, because the regulation really is, I believe, one of strict liability.

[00:32:23] Speaker 05:
You know, once he leaves the testing facility before the test process, I think that's a refusal.

[00:32:29] Speaker 05:
But, you know, in any event, strict liability really is not an issue here because he was expressly told that what he was about to do with strict liability is it goes to whether he committed a violation.

[00:32:41] Speaker 01:
What I'm trying to understand is the sanction and who gets to decide what should happen as a result of his violation.

[00:32:49] Speaker 01:
So assuming we agree with you that the facts are such that the violation was established

[00:32:55] Speaker 01:
As the NTSB found, I had understood you to be arguing that the NTSB had no choice but to apply the sanction that the FAA recommended.

[00:33:09] Speaker 01:
And now I hear you saying something different, which is the NTSB might do something

[00:33:14] Speaker 01:
other than what the FAA recommended, but only if they find that the FAA's sanction is unreasonable.

[00:33:21] Speaker 01:
Is that what you're saying?

[00:33:23] Speaker 05:
Yes, Your Honor.

[00:33:23] Speaker 05:
The NTSB is required to defer to the FAA Administrator's choice of sanction and review the sanction for reasonableness.

[00:33:30] Speaker 05:
You know, the FDA administrative sanction in a case is completely unreasonable.

[00:33:33] Speaker 05:
The NTSB is permitted.

[00:33:34] Speaker 01:
All right.

[00:33:35] Speaker 01:
And they say it's unreasonable in light of the two mitigating facts.

[00:33:38] Speaker 01:
So if I now, as a court of appeals judge, we as a body are looking at this, how are we, what, what's our level of scrutiny of their determination that it was unreasonable given those two mitigating circumstances that they mentioned?

[00:33:55] Speaker 05:
This court has said that the NTSB acts contrary to law where it does not apply the appropriate level of deference.

[00:34:01] Speaker 05:
So if this court finds, as it should, that the FAA Administrator's choice of sanction was reasonable, then the NTSB erred and acted contrary to law by finding the opposite.

[00:34:12] Speaker 04:
But we don't review that de novo.

[00:34:13] Speaker 04:
I mean, I take it that suppose if the agency says we're not applying any deference at all,

[00:34:19] Speaker 04:
we're just addressing de novo whether the sanction was appropriate.

[00:34:22] Speaker 04:
Well, then that would be an error of law that we would just overturn.

[00:34:24] Speaker 04:
And we'd say, no, you need to apply deference.

[00:34:27] Speaker 04:
But as Judge Jackson says, they at least invoke deference.

[00:34:30] Speaker 04:
And I mean, you could have an argument that, well, even if they invoke, they didn't apply it.

[00:34:33] Speaker 04:
So it's effectively the same thing that I just laid out, and that may be part of your pitch.

[00:34:37] Speaker 04:
But if they, in fact, invoked it and applied it, but just applied it in a way that on review you want to urge is problematic, then I take it our burden would be to say it has to be unreasonable

[00:34:49] Speaker 04:
for the board to determine that the sanction was unreasonable.

[00:34:54] Speaker 04:
That's conceptually possible, but isn't that the way we would look at it?

[00:34:57] Speaker 05:
No, I believe this court looks at the FAA Administrator's determination, the first instance, and looks at it for reasonableness.

[00:35:03] Speaker 05:
If the court looks at Garvey versus NTSB, that was not a case involving a sanction.

[00:35:08] Speaker 05:
It involved competing interpretations between the FAA and the NTSB over the meaning of a regulation.

[00:35:14] Speaker 05:
And the NTSB found that the FAA's interpretation of the regulation was unreasonable.

[00:35:20] Speaker 05:
This court looked at the FAA's interpretation of the regulation in the first instance, found that it was reasonable, and therefore reversed the NTSB.

[00:35:28] Speaker 04:
So we just step into the shoes of the NTSB.

[00:35:32] Speaker 04:
We don't review the NTSB's determination.

[00:35:35] Speaker 04:
That is exactly right.

[00:35:40] Speaker 05:
Unless there are further questions, we ask that the court deny Mr. Fam's petition for review and grant the FAAs.

[00:35:46] Speaker 04:
Thank you, Mr. Koppel.

[00:35:48] Speaker 04:
Mr. Armstrong, we'll give you three minutes for rebuttal.

[00:36:06] Speaker 03:
If it please the court, Judge Furnesson,

[00:36:09] Speaker 03:
I didn't pronounce your name correctly.

[00:36:12] Speaker 03:
What I've got here for you.

[00:36:14] Speaker 03:
You asked about leaving with permission.

[00:36:19] Speaker 03:
If I recall the question correctly in pastor neck.

[00:36:23] Speaker 03:
Number 2.

[00:36:28] Speaker 03:
This is found at 513 Fed Appendix one.

[00:36:32] Speaker 03:
The.

[00:36:33] Speaker 03:
This court wrote, however, the FAA concedes that leaving with permission does not constitute a refusal.

[00:36:39] Speaker 03:
So your question was, if if I asked permission to go to lunch and come back, they said it's not a refusal in pastor neck to with regard to deference 49 USC 4479 D3 reads.

[00:36:54] Speaker 03:
When conducting a hearing under this subsection, the board is not bound by findings of fact of the administrator.

[00:37:01] Speaker 03:
With regard to the question by Judge Rogers about this, let me ask you.

[00:37:06] Speaker 00:
Then what about Judge Jackson's question about the legislative history?

[00:37:12] Speaker 00:
Do we just ignore that?

[00:37:17] Speaker 03:
Judge Rogers, I don't appreciate your question.

[00:37:19] Speaker 03:
What are you asking me?

[00:37:22] Speaker 00:
What didn't you appreciate about the question?

[00:37:25] Speaker 03:
I don't know what you're asking me.

[00:37:27] Speaker 03:
I don't know what your question is.

[00:37:28] Speaker 03:
The legislative history, the palace bill of rights about, listen, 49 USC, 4479 D3 used to say the board must defer to the policies of the administrator.

[00:37:39] Speaker 03:
That language was abolished.

[00:37:41] Speaker 03:
I helped write the language that abolished it.

[00:37:42] Speaker 03:
I know about that.

[00:37:43] Speaker 00:
Can I just ask you a little bit?

[00:37:45] Speaker 00:
The point I think is that it was abolished and Congress twice said,

[00:37:53] Speaker 00:
It was abolished because in light of Martin, it was deemed to be superfluous, not because Congress was changing the standard.

[00:38:07] Speaker 00:
So my question to you is, in light of that, what is the court to do?

[00:38:15] Speaker 00:
Just to ignore that legislative history?

[00:38:20] Speaker 03:
The statute, your honor, says the board is not bound by findings of fact of the administrator.

[00:38:25] Speaker 03:
That's the current statute.

[00:38:26] Speaker 03:
That's what I said.

[00:38:27] Speaker 00:
The answer is we look only at the statutory text period.

[00:38:32] Speaker 03:
Yes.

[00:38:33] Speaker 00:
Thank you.

[00:38:33] Speaker 03:
That's my position.

[00:38:36] Speaker 03:
OK, next, Judge Jackson about sanction.

[00:38:40] Speaker 03:
14 CFR 120.11 B2

[00:38:49] Speaker 03:
Refusal by the holder of a certificate issued in our part 61 of this chapter to take a drug or alcohol alcohol test required under the provisions of this part is grounds for suspension or revocation with the statute says.

[00:39:04] Speaker 03:
But the regulation says.

[00:39:05] Speaker 03:
What else we got?

[00:39:07] Speaker 03:
Lacey Jones, the special investigations branch manager.

[00:39:11] Speaker 03:
Time's up, Mr Armstrong.

[00:39:12] Speaker 04:
Can I just ask you to bring it to a close when your time is up?

[00:39:15] Speaker 03:
Well, all I can say is is that we respectfully submit that there is no evidence to support the finding of a violation.

[00:39:22] Speaker 03:
The record demonstrates to the country we ask that the board's order be vacated.

[00:39:25] Speaker 03:
Thank you, Ron.

[00:39:27] Speaker 04:
Thank you, counsel.

[00:39:28] Speaker 04:
That's my brother.

[00:39:29] Speaker 04:
My colleagues have further questions for you.

[00:39:31] Speaker 04:
Thank you, counsel.

[00:39:32] Speaker 04:
Thank you to both.

[00:39:33] Speaker 04:
Thank you very much.

[00:39:34] Speaker 04:
We'll take this case under