by Greg Reigel
© July, 2014 All rights reserved.
When you are dealing with a medical certification issue, it is important to “pick your battles carefully” based upon the facts and proper procedure. This situation was highlighted in a National Transportation Safety Board (NTSB) case, Petition of Cooper, which involved an airman’s appeal of the FAA’s denial of his application for a first class medical certificate. The FAA denied the application based upon the airman’s “history and clinical diagnosis of diabetes mellitus requiring oral hypoglycemic medication for control and bipolar disorder.” The FAA cited 14 C.F.R. §§ 67.113(a)(b)(c), 67.213(a)(b)(c), and 67.313(a)(b)(c) in support of its denial (all three regulations identify diabetes mellitus as a disqualifying condition, although Section 67.113(a)(b)(c) is the regulation specifically applicable to a first class medical certificate). However, the FAA did not cite 14 C.F.R. §§ 67.107, 67.207, nor 67.307, even though those regulations identify bipolar disorder as a disqualifying condition.
The airman appealed the denial to NTSB. However, the administrative law judge (“ALJ”) dismissed the airman’s petition and terminated the case on his own accord without holding a hearing and without any request from the FAA for such a dismissal. The ALJ concluded that a hearing “would serve no useful purpose” because the Board did not have the discretion to reverse the FAA’s denial. The ALJ also rejected the airman’s argument that he did not have bipolar disorder as moot because the airman had admitted to having diabetes mellitus, a specifically disqualifying condition. Of course the airman then appealed the dismissal to the full Board.
On appeal the airman argued that the ALJ erred when he determined that the FAA’s denial of his application based on bipolar disorder was moot in spite of his diagnosis of and treatment for diabetes. The airman contended that whether he had bipolar disorder was a factual issue that the ALJ must resolve after a hearing, and that bipolar disorder is the only condition that might disqualify him since he would otherwise meet the criteria for a special issuance medical under Section 67.401 in spite of his diabetes mellitus.
The Board agreed with the ALJ. It held that the diabetes mellitus was a specifically disqualifying condition and that alone justified the FAA’s denial of the airman’s application for a first class medical certificate. The Board noted that whether the airman qualified for a special issuance in spite of the diabetes mellitus was not an issue before it. Finally, the Board concluded that although the airman had presented evidence that potentially refuted the allegation that he suffered from bipolar disorder, the issue was moot in light of the diabetes mellitus.
The Board’s decision is not a surprise. When an airman is denied a medical based upon an admitted disqualifying condition, an appeal will, in almost all cases, be unsuccessful. In that situation, the only recourse for a denied airman is to seek a special issuance. If the FAA refuses to grant a special issuance, an airman may appeal that denial. However, since the Board defers to the FAA’s discretion in denying a special issuance, the only way to be successful is to show that the denial is arbitrary or capricious (e.g. that the FAA has granted a special issuance in circumstances that are very similar to or identical with those of the denied applicant).
Fortunately for the airman in this case, he can still apply to the FAA for a special issuance and, if he meets the criteria, the FAA may grant a special issuance in spite of his diabetes mellitus. (This is what he should have done before appealing the initial denial). However, the airman may, unfortunately, still have to fight the FAA’s determination that he has bipolar disorder. But if the airman is able to present evidence and facts that convince an ALJ that he does not suffer from bipolar disorder, the airman may ultimately be able to receive a medical certificate.
EDITORʼS NOTE: Greg Reigel is an attorney with Reigel Law Firm, Ltd., a law firm located in Hopkins, Minnesota, which represents clients in aviation and business law matters (www.aerolegalservices.com, 952-238-1060).
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