by Gregory J. Reigel, Esq
© Copyright 2023. All rights reserved.
Published in Midwest Flyer Magazine February/March 2023 Digital Issue

If you are a safety sensitive employee (pilots, mechanics, flight attendants, dispatchers, etc.) working for Part 121 and 135 carriers, a maintenance provider who maintains aircraft on behalf of those carriers, or an operator who conducts non-stop sightseeing flights for compensation or hire under FAR § 91.147, you are all too familiar with your obligation to submit to drug and alcohol testing. You are also probably aware of the severe consequences imposed upon you for failure to submit to a test when requested (termination of employment, revocation of the employee’s airman certificates, to name a few).

Unfortunately, successfully defending your rights in a drug testing refusal case is difficult, at best. Refusal cases involve fact-specific inquiries. Over the years airmen have made many arguments in their attempts to fight a certificate action in this situation. However, many of those arguments simply do not carry the day. Here are a few of those arguments and an explanation of why they are typically unsuccessful.

“Violation/Incident-Free History.”

Airmen argue that the FAA should take into consideration their lack of violations or incidents to mitigate against the severity of a revocation. Unfortunately, the FAA, and by extension the National Transportation Safety Board (NTSB), view a violation/incident-free history as the status quo. Compliance with the regulations is a minimum requirement and does not mitigate against the sanction for a testing refusal. So, even though you have a “clean” record, that argument won’t impact the FAA’s or NTSB’s decisions in the case.

“The Pilot’s Bill of Rights Eliminated The Requirement For NTSB
To Defer To FAA.”

Before the Pilot’s Bill of Rights, 49 U.S.C. 44703(d)(2) provided that the NTSB was “bound by all validly adopted interpretations of laws and regulations the [FAA] Administrator carries out and of written agency policy guidance available to the public related to sanctions to be imposed under this section unless the Board finds an interpretation is arbitrary, capricious, or otherwise not according to law.” The NTSB had, in fact, consistently held that it was bound by the FAA’s choice of sanction derived from the Sanction Guidance Table contained in FAA Order 2150.3B.

The Pilot’s Bill of Rights expressly eliminated this “bound by” language. The NTSB is no longer bound to simply accept the sanction proposed by the FAA in an enforcement case. Rather, the NTSB is permitted to select what it believes to be the appropriate sanction based upon the facts of the cases and any mitigating or aggravating circumstances.

However, this does not completely remove the deference it must give an administrative agency’s interpretation of its regulations and proposed sanctions for violation of those regulations. While the NTSB is no longer required to simply “rubber stamp” the FAA’s choice of sanction, it can’t ignore the FAA’s choice either. Thus, arguing that the NTSB may not in any way defer to the FAA’s choice will be unsuccessful.

“Shy Bladder Is Not An Acceptable Excuse.”

Unfortunately, “shy bladder syndrome” is not an acceptable medical explanation. Rather, it is a psychological condition that requires prior diagnosis.

The testing regulations contemplate an inability to provide a sufficient sample and specify a process to address that situation. This is commonly referred to as a shy bladder situation.

However, completion of the protocol for addressing a shy bladder situation does not by itself excuse a failure to provide a sufficient sample. A medical explanation (whether physical or psychological) is still required to justify failure to provide a sufficient sample.

“Suspension Rather Than Revocation.”

Although FAR 120.11 states that “suspension or revocation” are the appropriate sanctions for a refusal, NTSB precedent, and the FAA’s invariable choice of sanction, impose revocation in testing refusal cases. Unfortunately, the FAA completely ignores the “suspension or” language in the regulation, as will the Board unless the airman is able to prove some significant mitigating circumstances.

The FAA and NTSB view a refusal to submit to a drug test as an indication that the individual lacks the necessary qualifications to hold an airman certificate. As a result, while a small handful of cases have imposed the lesser sanction of suspension, it is extremely rare and then only due to significant mitigating circumstances.

Conclusion

Drug testing refusal cases are difficult, but not impossible, to win. If you find yourself in the unenviable position of having to defend yourself against an FAA allegation that you refused to test, I recommend that you carefully consider whether you should assert any of these arguments that both the FAA and NTSB have repeatedly rejected.
Rather, I suggest you focus on other arguments and defenses, if available, including emphasizing any mitigating circumstances that may support a suspension, rather than revocation.

EDITOR’S NOTE: Greg Reigel is an attorney with Shackelford, Melton, McKinley & Norton, LLP, and represents clients throughout the country in aviation and business law matters. He has more than two decades of experience working with airlines, charter companies, fixed base operators, airports, repair stations, pilots, mechanics, and other aviation businesses in aircraft purchase and sales transactions, regulatory compliance including hazmat and drug and alcohol testing, contract negotiations, airport grant assurances, airport leasing, aircraft-related agreements, wet leasing, dry leasing, and FAA certificate and civil penalty actions. For assistance, call 214-780-1482,
email: greigel@shackelford.law, or Twitter @ReigelLaw (www.shackelford.law).