The NTSB recently reversed an administrative law judge’s (“ALJ”) decision in which the ALJ affirmed the FAA’s revocation of an airman’s airline transport pilot, commercial pilot, and flight instructor certificates for allegedly violating FAR 91.17(a)(3) (“No person may act or attempt to act as a crewmember of a civil aircraft . . . while using any drug that affects the person’s faculties in any way contrary to safety.”) In Administrator v. Holland the FAA issued an order revoking the airman’s certificates after the airman’s drug test revealed a positive result for cocaine. The airman then appealed the revocation to the NTSB.
During the hearing before the ALJ, the FAA’s witnesses testified that a cocaine metabolite was present in the airman’s system, rather than the drug cocaine. (Metabolites are molecular compounds produced by the body, and are present in the body for at least some time period after the body metabolizes a drug or other substance.) Although the airman raised a number of defenses, the ALJ rejected the defenses and affirmed the FAA’s order of revocation. The airman then appealed the ALJ’s decision to the full NTSB.
On appeal, the airman raised a number of arguments relating to the conduct of the test and chain of custody for the specimen. The airman also argued that the FAA did not prove that he violated FAR 91.17(a)(3) because it did not establish that the airman operated an aircraft “while using” a “drug” that affected his faculties. However, the Board focused its analysis on this latter argument.
The Board initially observed that it is required to defer to the FAA’s interpretation of a regulation unless the FAA attempts to impose a requirement not contained in the plain language of the regulation, in which case the FAA is not entitled to deference. With that background, the Board reiterated that the FAA was attempting to interpret the presence of drug metabolites in an airman’s urine prior to a flight as prima facie evidence that the airman was “using” a prohibited substance at the time of his or her operation of an aircraft contrary to FAR 91.17(a)(3).
The Board then determined that the FAA’s interpretation that “metabolite” is equivalent to “drug” and that any metabolite level alone would suffice to prove a violation of FAR 91.17(a)(3) was an arbitrary and capricious interpretation of the plain language of FAR 91.17(a)(3). The Board concluded that FAR 91.17(a)(3) “proscribes having a drug ‘that affects a person’s faculties in any way contrary to safety’ in one’s system at the time he or she serves or attempts to serve as a crewmember.” Since the FAA did not present any evidence showing that cocaine or any other prohibited substance was actually in the airman’s system at the time he operated the flight, the FAA failed to prove a violation of FAR 91.17(a)(3).
The Board definitely had a hard time ruling in favor of the airman in this case: “[W]e are ourselves troubled by the evidence indicating the presence of cocaine metabolites in respondent’s system contemporaneous with his operation of an aircraft and while in possession of a commercial pilot certificate.” But it made the right decision by, surprisingly, refusing to defer to the FAA’s interpretation of FAR 91.17(a)(3).
Unfortunately for the FAA, this case was lost because the FAA only alleged a violation of FAR 91.17(a)(3), rather than also including FAR 67.107(b)(2), 67.207(b)(2), or 67.307(b)(2) (depending upon the class of medical certificate held by the airman) which would be violated by a positive drug test, regardless of the “drug”/”metabolite” distinction. Bet the FAA, or at least the FAA attorney who prosecuted the case, won’t make that mistake again.