NTSB Affirms Dismissal Of Airman’s Second Attempt To Gain Medical Certificate In Spite Of History Of Disqualifying Conditions

The Case

The case, Petition of Bartels, involved the FAA’s denial of an airman’s application for medical certificate based upon certain disqualifying medical conditions under FAR Part 67. The airman initially applied for an airman medical certificate and the FAA denied his application based upon his history of coronary artery disease. The airman filed a petition for review with the NTSB seeking reversal of the FAA’s denial. After a hearing, an administrative law judge (“ALJ”) determined that the airman’s history of coronary artery disease made him ineligible for a medical certificate and the ALJ dismissed the airman’s petition. The airman did not appeal the ALJ’s dismissal to the full Board and, as a result, the ALJ’s order became the final decision in the case.

Approximately three years later, the airman submitted another application for a medical certificate. The FAA again denied the airman’s application based upon the his history and medical diagnosis of not only coronary artery disease requiring bypass surgery, but also myocardial infarction, angina pectoris, hypertension requiring medication, and sleep apnea. Although the airman requested reconsideration, the FAA refused to change its position and issued a final denial. The airman then appealed the second denial to the NTSB.

When the ALJ received this second appeal, the ALJ dismissed the airman’s petition without any request or motion by the FAA and terminated the case. Under the doctrine of res judicata, the ALJ concluded that the final decision in the prior case precluded the airman’s attempt to re-litigate the same issue regarding his application for medical certificate. The ALJ also determined that he lacked jurisdiction to review the FAA’s refusal to issue the airman a special issuance medical certificate. This time the airman appealed the ALJ’s decision to the full Board.

On appeal, the airman argued his petition was not barred by the doctrine of res judicata because the FAA failed to provide evidence that he could not safely operate an aircraft. He also claimed the FAA’s denial of a special issuance medical certificate was arbitrary and capricious. Unfortunately for the airman, the Board rejected his arguments.

The Board initially observed that “the doctrine of res judicata applies to certificate denial cases in which a petitioner submits successive petitions relating to a medical certificate.” Res judicata precludes an airman from re-litigating the same claim in a second legal proceeding if the following elements are satisfied:

1. an earlier decision on the issue;
2. a final judgment on the merits; and
3. the involvement of the same parties or parties in privity with the original parties.

The Board concluded that all three elements existed in the airman’s case. In the airman’s earlier case the same issue was present (history of coronary artery disease), the decision became final after the airman failed to timely appeal the ALJ’s decision to the Board, and the same parties were involved.

With respect to the airman’s claim that the FAA’s refusal to issue a special issuance was arbitrary and capricious, the Board agreed with the ALJ that it did not have the jurisdiction to review the FAA’s decision. The Board stated “[w]hile the Board is empowered under 49 U.S.C. § 44703 to review a denial of an airman certificate, the decision whether to grant a special issuance medical certificate under 14 C.F.R. § 67.401 completely is within the Administrator’s discretion and, thus, not subject to Board review.”

Conclusion

In light of the Board’s significant precedent on the issue, I am not surprised by its decision regarding the special issuance. Similarly, application of res judicata to situations involving multiple applications rejected for the same reasons makes sense. However, this case also highlights the fact that failure to appeal or otherwise exhaust your administrative remedies can come back to haunt you in the future. As a practical matter I’m not sure that an appeal of the ALJ’s decision in the earlier case would have changed the result in this case. My guess is that it probably wouldn’t have made a difference. Unfortunately, once the FAA determines that you have a disqualifying medical condition, the fight to obtain is often a significant, and sometimes insurmountable, challenge.

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