The NTSB recently affirmed an administrative law judge’s (“ALJ”) determination that an airman failed to carry his burden of proving that his positive drug test resulted from “unknowing ingestion.” In Administrator v. Zumarraga the FAA issued an emergency order revoking all of the airman’s certificates under FAR 120.33(b) based upon a positive result from a random drug test. The airman appealed the order arguing that the positive result, indicating cocaine metabolytes, was caused by his ingestion of mate de coca tea. At the hearing, the airman testified regarding his consumption of the tea and two medical experts appearing on the airman’s behalf testified that the positive drug test result could have been caused by the tea. Unfortunately, the ALJ made a credibility determination adverse to the airman and affirmed the FAA’s emergency revocation order.
The ALJ found that the airman failed to carry his burden of proving whether he ingested the mate de coca tea before the random drug test and whether the positive drug test resulted from his ingestion of that tea. Since the airman did not prove his “unknowing ingestion” affirmative defense, the ALJ then determined that he did not need to decide upon the airman’s challenge to the FAA’s strict liability interpretation of FAR 120.33(b) (the FAA argued that a positive test result was a violation of the regulation regardless of any affirmative defense an airman may assert). The airman then appealed the ALJ’s decision to the full Board.
On appeal, the airman argued that the ALJ abused his discretion by entering a decision adverse to the airman absent substantial evidence. However, deferring to the ALJ’s credibility determinations, the Board agreed that the airman failed to carry his burden of proving the affirmative defense of “unknowing ingestion.” Although the airman claimed that the FAA did not rebut his evidence, the Board noted that the airman had the burden of proving his affirmative defense by a preponderance of the evidence and even absent a rebuttal case, the ALJ still found that he did not meet his burden. As a result, since the ALJ relied upon explicit facts and evidence in the record when he determined that the airman was not credible, the Board found that the ALJ’s decision was not arbitrary or capricious.
The airman also argued that the FAA’s strict liability policy on a positive drug test result improperly precludes the affirmative defense of “unknowing ingestion.” However, the Board observed that the airman was actually allowed a full and fair opportunity to present his affirmative defense at the hearing. Since the airman had the chance and failed to prove his affirmative defense, the Board concluded that it did not need to determine “whether the FAA’s strict liability interpretation of FAR 120.33(b) barred a defense of unknowing ingestion and thus, is arbitrary and capricious.”
From a factual perspective, this case isn’t surprising. Once an ALJ makes specific credibility determinations, it is very difficult to get the Board to reverse those findings. However, from a legal perspective this case is disappointing. It would have been nice to have a decision on whether the FAA’s interpretation of FAR 120.33(b) as a “strict liability” regulation that cannot be rebutted by a factual affirmative defense is proper. I guess we’ll have to wait for a case in which an airman carries his or her burden of proving the affirmative defense in order to force an ALJ, and potentially the Board, to decide whether the FAA’s interpretation is correct.