Background
Ryan Paul, a pilot for Amerijet International, was selected for a random drug test while in Vietnam. He could not return to Seattle in time due to a sinus infection. Amerijet determined he refused the test and reported this to the FAA. The FAA notified Paul of an investigation but later issued a letter stating it would not take enforcement action while noting Paul was barred from safety-sensitive duties until completing a return-to-duty process. Paul petitioned for review, arguing the FAA failed to review the employer’s refusal determination.
The court’s reasoning
The court held that the FAA must review an employer’s test-refusal determination. Although statutes and regulations do not explicitly mandate this review, the court found the FAA’s internal Drug and Alcohol Compliance and Enforcement Surveillance Handbook plausibly requires it. The Handbook refers to employer reports as ‘allegations’ and tasks the Drug Abatement Division with determining if noncompliance exists. Reading the Handbook to allow the FAA to entirely outsource these determinations to private employers without review would raise serious constitutional concerns under the private nondelegation doctrine. Because the FAA conceded it conducted no such review, the court found the agency arbitrarily and capriciously departed from its own procedures.
We hold that it must. The FAA’s internal guidance—the Drug and Alcohol Compliance and Enforcement Surveillance Handbook—plausibly requires such review.
Opinion for the Court filed by Circuit Judge Garcia
The dissent
The Division’s letter to Paul was not only an ‘order,’ as my colleagues designate it, but more specifically, it was ‘an order amending, modifying, suspending, or revoking – any part of a certificate issued under this chapter.’
Senior Circuit Judge Randolph
What it means going forward
The decision requires the FAA to implement a review process for pilot drug test refusals reported by employers. It prevents private airlines from having the final say on whether a pilot refused a test without government oversight, thereby mitigating potential constitutional violations regarding the delegation of governmental authority to private entities.