The NTSB recently affirmed an administrative law judge’s (“ALJ”) dismissal of an emergency order revoking all of an airman’s certificates for allegedly refusing to submit to a drug test. In Administrator v. Rojas, the FAA alleged that the airman, a pilot for Pinnacle Airlines, refused to submit to a drug test in violation of FAR Part 121, App. I, FAR 67.107(b)2 and 49 C.F.R. § 40.191(a)(1). As a result, the FAA issued an emergency order revoking all of the airman’s certificates. The airman then appealed the FAA’s order to the NTSB.
At the hearing, the FAA presented evidence in support of its allegations that the airman had been selected for a random drug test, was notified of the drug test and then refused to submit to the drug test. The airman presented evidence that the airline employee who allegedly notified him of the drug test never received training relating to drug-testing and, in fact, after notifying the airman of his selection for testing then told the airman that he did not need to submit to the test until a later time.
At the conclusion of the hearing, the ALJ determined that the airman’s evidence was more credible. He specifically found that although the airman did not take the drug test, he did not lack the qualifications to hold an ATP or first-class medical certificate as alleged by the FAA. Further, he credited witness testimony that the airline employee withdrew her request for a drug test, and did not notify the airman that she would consider his statement concerning the lack of sufficient time to complete the test to be a refusal. Of course, the FAA then appealed the ALJ’s decision to the full Board.
On appeal, the Board initially observed that much of the ALJ’s decision was based upon his credibility determinations and that “resolution of a credibility determination, unless made in an arbitrary or capricious manner or unless clearly erroneous, is within the exclusive province of the law judge.” It went on to note that it could not withhold deference to an ALJ’s credibility findings simply because other evidence in the record could have been given greater weight by the ALJ.
Next, the Board stated that “cases concerning refusals to submit to drug tests involve fact-specific inquiries.” It then held that, based upon the evidence credited by the ALJ, it could not find that the airman’s conduct constituted a refusal. The Board further concluded that the ALJ’s credibility determinations were not arbitrary, capricious, or contrary to the weight of the evidence.
This case highlights the merit of appealing a revocation order based upon an alleged refusal to submit to drug-testing. Given the appropriate facts, it is possible to have the FAA’s order dismissed, if the airman can persuade the ALJ that he or she did not refuse to submit to the drug test. Not always possible. But if the airman is successful, the Board should defer to the ALJ’s decision if/when the FAA appeals.