The United States Court of Appeals for the District of Columbia recently affirmed the FAA’s denial of an airman’s application for a first-class medical certificate because the airman “had a history of ‘disturbance of consciousness without satisfactory medical explanation’ or ‘other seizure disorder, disturbance of consciousness, or neurologic condition’.” In Dickson v. NTSB and FAA, the FAA denied the airman’s application because he had “a history of disturbance of consciousness without satisfactory medical explanation, and/or other seizure disorder, disturbance of consciousness, or neurologic condition” which disqualified him from receiving a medical certificate under FAR 67.109(a)(2)(b). The FAA’s finding was based upon two incidents in which the airman had suffered what appeared to the FAA to be unexplained seizures, one of which occurred while the airman was acting as a first officer on a flight.
The airman appealed the denial and, after a three-day hearing at which both the airman and the FAA presented expert medical testimony, an Administrative Law Judge (“ALJ”) affirmed the FAA’s denial. Upon further appeal, the full Board affirmed the ALJ’s order. The airman then appealed the Board’s decision to the United States Court of Appeals for the District of Columbia arguing that the Board’s decision was not supported by substantial evidence.
The Court initially noted that the airman had the burden of proof to establish his medical qualifications by a preponderance of reliable, probative, and substantial evidence. (This is the opposite of enforcement actions in which the FAA has the burden of proof). Thus, the Court observed that “to succeed in this court, Dickson has a particularly difficult burden: he must show that substantial evidence does not support the Board’s determination that Dickson failed to establish his medical qualifications by a preponderance of the evidence.”
Although the airman disagreed with the ALJ’s and Board’s credibility findings in favor of the FAA, the airman conceded to the Court that a difference of medical opinion existed as to whether he experienced seizures during the two incidents: the FAA’s experts saying he had and the airman’s experts saying he did not. In response, the Court stated that “a difference of opinion is not enough to show that the NTSB lacked substantial evidence for its decision” and “a conclusion may be supported by substantial evidence even though a plausible alternative interpretation of the evidence would support a contrary view.” As a result, the Court affirmed the denial of the airman’s medical application.
This case illustrates the difficulty an airman faces in appealing the FAA’s denial of a medical application. Although not impossible, convincing an ALJ that the FAA’s basis for denial is unsupported by substantial evidence is a significant challenge.