U.S. Court of Appeals Calls FAA “A Repeat Offender”
[The following article was published in AEROPODIUM EXPERT, Issue 19 - January 2022]
U.S. Court of Appeals Calls FAA “A Repeat Offender”
By Michael L. Dworkin, Managing Partner, Avialex Law Group
Governmental administrative agencies possess considerable expertise. With the recent exception of the Boeing 737 MAX debacle, the US Federal Aviation Administration (“FAA”), has been regarded as the “gold standard” in its regulation of air safety and the certification of aircraft, airmen, air agencies and airports.
However, in a recent case (Erwin v. FAA, U.S. Court of Appeals, District of Columbia Circuit, No. 20-1443, December 28, 2021), the Court referred to that agency as “a repeat offender”, admonishing it that it “cannot simply declare its expertise; it must exercise that expertise and demonstrate sufficiently that it has done so”.
In Erwin, an airline pilot’s medical certification was withdrawn after he tested positive for alcohol in a random test taken less than one day after an unknowing exposure to alcohol—i.e., consuming pulled pork at a Franklin, Tennessee restaurant that had been prepared in beer. The menu did not mention the beer. In support of his reconsideration request Erwin submitted numerous documents, including governmental and scientific reports critical of the alcohol testing methodology and reliance upon the test results, a report from a forensic toxicologist and an email from the restaurant advising that the dish was cooked in beer but that this it had not been disclosed in the menu.
Aside from failing to take action on the pilot’s reconsideration request within the 60-day time frame required by pertinent Federal Aviation Regulations (Sec. 67.401(i)(3)), the FAA, in a two-page Final Order stated that it after review of the agency medical file, this additional information and documentation was not sufficient to reverse the withdrawal.
The Court reversed, stating that the FAA ‘s reconsideration request merited explicit consideration and weighing of Erwin’ supporting evidence and explanation of the result.
The “repeat offender” moniker was apparently derived from the Court’s prior experience with the FAA’s having failed to provide any rationale in two prior cases before it (one dealing with airport passenger facility charges in 2004 and another dealing with another medical certification decision in 2016).
But aside from the legal issues and technicalities above, there is another takeaway. That is, for all aviation professionals who are subject to drug and/or alcohol testing, make sure you know what you are consuming. Unless you or a member of your immediate family has prepared the food under your own roof, it would not be impolite to advise that your job makes you subject to random testing and to assure that you are not ingesting something that might produce a positive test result.