FAA Improperly Revoked Airman's Certificates

grabbed his id. and i told him i would have to notify the justification" for his actions. the board rejected that after" pasternack. see hearing tr. at 63-64 (j.a. 57-58) ("a. he throckmorton v. ntsb, 963 f.2d 441, 444 (d.c. cir. 1992). for purposes of the department of transportation regulation. strict liability provision. but the board having entertained we review ntsb decisions under the arbitrary and montalvo's assertion that she didn't have an opportunity to drug test. the national transportation safety board upheld undisputed conduct � the fact he had "left the test site without the alj's "implicit . . . credibility determination" against that an employee may not leave the collection site during a random not supported by substantial evidence, we must vacate the united states court of appeals we grant pasternack's petition, vacate the board's 4 penalty for refusing to take a test is naturally harsh: the him that he had been randomly selected for drug testing; such montalvo herself apparently did not view pasternack's in this case, however, the alj made no credibility respondents 5 see 5 u.s.c. � 706(2)(a); 49 u.s.c. � 46110(c); garvey v. implausible that montalvo had no opportunity to tell pasternack left the facility in a rushed manner, it is utterly (quoting williams gas processing�gulf coast co. v. ferc, * * * 405). the board rejected that claim, finding that the alj had that he or she is not permitted to leave the collection site and if they the board stated, in summarizing the evidence, that in order negative for drugs. pasternack claimed to have left the substantial evidence to support the board's reasoning . . . its before: ginsburg, brown, and kavanaugh, circuit contends that because he had been trained as a medical review supported by substantial evidence. to be sure, we must did not advise pasternack that his departure from the testing seconds for montalvo to convey that crucial piece of leaving would constitute a refusal and because that finding is other things, that the board erred in finding that his conduct that montalvo was "precluded" from telling pasternack the regulations, pasternack was required to remain at the collection site but was unable to provide a sufficient quantity decision, and remand to the board for further proceedings behavior "precluded" montalvo from informing him that his facility would be deemed a refusal. see hearing tr. at 79 drug testing in june 2007 because he was "not current or qualified his leaving for a few hours qualified as an "exculpatory montalvo, however, testified that pasternack "rushed out of contended that the fact he was not told the consequences of the facility" while she was attempting to explain the regulations themselves. see faa br. at 40. the faa also airlines, inc. v. ntsb, 439 f.3d 715, 717 (d.c. cir. 2006) revoking pasternack's airline transport pilot and flight behavior . . . precluded" montalvo from telling him that his of urine for the test. this is not an uncommon occurrence, 2 drug test." id. at 40 n.37. we cannot deny the petition on those constitute a refusal to test"? moreover, montalvo herself 1 constrained to vacate the board's decision. see chenery, 332 factual issue. testified that after pasternack said he needed to leave, she had moreover, even assuming the alj had made a credibility consequences of his leaving. on the contrary, even if board. chirino v. ntsb, 849 f.2d 1525, 1532 n.10 (d.c. cir. aviation administration, refusal. in light of montalvo's own testimony, no substantial grounds, we need not consider that argument. amounted to a refusal of a drug test.1 pasternack to remain in the waiting room until he could that have been "expressly approved" by the board. of the national transportation safety board collection guidelines instructed collectors to give that warning. hours later, at which time he provided a sample that tested respondent. susan caron, attorney, entered an appearance. and for such situations, the department has adopted "shy explaining . . . that [pasternack's] departure from the pasternack appealed the faa's order to the national further proceedings consistent with this opinion. justification"; it may be that 49 c.f.r. � 40.191(a)(2) is a his leaving would constitute a refusal, he "would have pasternack and that "the preponderance of the dr. fred pasternack was a part-time pilot with plain language of � 40.191(a)(2). id. at 11 (j.a. 404). the departure as a refusal to take the test (given that she allowed determination that montalvo's testimony was entirely truthful 20 (2006) ("when the employee does not provide a sufficient see office of drug & alcohol policy & compliance, u.s. national transportation safety board and federal 18133 (july 30-31, 2008) (hearing tr.) (j.a. 281-83). the revocation order. because a key finding on which the have been binding on montalvo because they did not appear in the opinion for the court filed by circuit judge v. departure would constitute a refusal. the board also invoked an administrative law judge, who affirmed the revocation (j.a. 69).2 (j.a. 399). montalvo, however, did not testify that she had to "call on the ground that pasternack refused to take a mandatory acknowledged that it would have taken no more than a few administration revoked fred pasternack's airman certificates transportation safety board. the case was initially heard by capricious standard and treat the board's factual findings as 373 f.3d 1335, 1345 (d.c. cir. 2004)); see sec v. chenery decision pursuant to 49 u.s.c. � 1153. he contends, among transportation regulations. pasternack reported to a labcorp amount of urine," the collector "must specifically tell the employee id. at 120 (j.a. 100); see 49 c.f.r. � 40.191(a)(2). the board's decision.4 adm'r v. pasternack, ntsb order no. ea-5443 (apr. 27, pasternack petitioned this court for review of the board's 3 no. 09-1139 random drug testing was required by department of process had been completed" � qualified as a refusal under the justification on the ground that pasternack's "own statement. id. at 63-64 (j.a. 57-58).3 justifications for his refusal," including his claim that no one provide another specimen. pasternack apparently had a order no. ea-5443, at 12 (j.a. 405). dep't of transp., urine specimen collection guidelines 18, board relied was not supported by substantial evidence, we montalvo was "precluded" from warning pasternack that his him to take the test when he returned), a medical review fred leroy pasternack, according to pasternack, if he had been told that testing site meant that he had technically refused a drug test 3 several minutes in the waiting room. see transcript of ntsb 2009) (j.a. 394). for the district of columbia circuit in so doing, we do not purport to say that 598 (d.c. cir. 2002). 49 c.f.r. � 40.33(a). may uphold agency orders based only on reasoning that is bladder" procedures. see 49 c.f.r. � 40.193. under the yet montalvo did not evidence supports the board's conclusion that pasternack's it on a ground not supported by substantial evidence, we are pasternack and in favor of montalvo. pasternack, ntsb to convey this information, montalvo "called after" pasternack "as order. the board, in turn, affirmed the alj's decision. see 120.105. because we vacate the ntsb's decision on other officer, pasternack "should have been familiar with the requirement 1988). fully explain the "shy bladder" collection procedures to ii "conclusive" if they are supported by substantial evidence. long would it have taken to say, "if you leave, that will james f. conneely, attorney, federal aviation employer. q. what was his response to that? a. he said, fine. q. grant the petition, vacate the board's decision, and remand for hearing at 424-26, adm'r v. pasternack, docket no. se- transportation regulations provide that a "collector in the dot 68). the alj's findings of fact simply did not address that board then considered pasternack's "exculpatory an opportunity to tell him she would have to notify his for petitioner. petitioner 2 instructor certificate and his ground instructor certificate. ntsb, 190 f.3d 571, 577 (d.c. cir. 1999). however, "we oral argument before this court, the government's counsel to perform as a pilot." pasternack br. at 3; see 14 c.f.r. � consistent with this opinion. take advantage of that opportunity to give pasternack the far current `dot urine specimen collection procedures guidelines.'" determination � express or implied � with respect to because the board expressly relied on its finding that kavanaugh, circuit judge: the federal aviation corp., 332 u.s. 194, 196 (1947). therefore, "[i]f there is no [he] was leaving." pasternack, ntsb order no. ea-5443, at 6 pasternack before he left the facility. hearing tr. at 78 (j.a. and what happened after that? a. he walked out."). pasternack also contends that he was not eligible for random the department of transportation's urine specimen labcorp precluded the labcorp test administrator from fairly stated by the agency in the order under review." casino as an initial matter, the board observed that pasternack's employer, and that pasternack heard and responded to that respect "reasonable credibility determinations" of the alj pasternack that his leaving would be deemed a refusal. at uphold the board's decision on a basis not relied upon by the 4 kathleen a. yodice argued the cause and filed the briefs and accurate, it still would not support the board's conclusion facility . . . would constitute a refusal." id. northeastern aviation. in june 2007, northeastern notified remained at the site." id. at 442-43 (j.a. 292-93). pasternack told him leaving would constitute a refusal. id. at 12 (j.a. specimen. see id. the collector, theresa montalvo, told in our view, the board's reasoning on this point was not federal aviation administration issued an emergency order argued january 22, 2010 decided february 26, 2010 drug testing program . . . must be knowledgeable about . . . the evidence . . . demonstrates that [pasternack]'s own behavior at pasternack's "exculpatory justification," and having rejected 6 scheduled business-related meeting and told montalvo he administration, argued the cause and filed the brief for officer concluded that pasternack's failure to remain at the collection site with montalvo's acquiescence after spending grounds: under "well-established chenery principles," we cannot i leaving would be considered a refusal. judges. collection procedures to him. id. at 78 (j.a. 68). although it is undisputed that montalvo, the collector in this case, information. see tr. of oral arg. at 17-18. after all, how order must be vacated." van dyke v. ntsb, 286 f.3d 594, do so, that it will be considered a refusal to test"). department of the board was required to consider pasternack's "exculpatory more important warning that his leaving would constitute a made an "implicit . . . credibility determination" against providing an adequate urine sample and before the testing 7 collection site for three hours or until he provided a sufficient on petition for review of an order so ordered. the faa suggests that the collection guidelines may not kavanaugh. needed to leave the collection site. he left and returned a few u.s. at 196.