On Petition for Review of an Order of the National Transportation Safety Board
Before: Ginsburg, Chief Judge, and Randolph and
Roberts, Circuit Judges.
The opinion of the court was delivered by: Roberts, Circuit Judge
The Federal Aviation Administration revoked Charles Duchek's three airman certificates, basing its action on a finding that Duchek had refused to submit to a required drug test. Duchek argues that he never refused to submit to a test: although he received a letter stating that his name had been randomly selected for testing, the letter did not establish a date and time to report for the test -- because, in the typical case, it was Duchek's job to set the date and time for those company employees selected for the unannounced tests. An administrative law judge at the National Transportation Safety Board agreed with Duchek that a test must be scheduled before an airman can be deemed to have refused to submit to it, but the Board reversed, holding that the FAA acted properly in revoking Duchek's certificates. We hold that the applicable regulations do not support the FAA's action, and therefore vacate the Board's order as arbitrary and capricious.
Duchek is the operator and the co-owner, with his wife, of Midwest Aeronautical Training, Inc., a small company in St. Louis, Missouri that provides helicopter services, including air taxi service and pilot training. As a provider of commuter and on-demand flight services, Midwest holds a certificate under Part 135 of the Federal Aviation Regulations, codified at 14 C.F.R. Part 135. Employers with such certificates must ensure that employees in safety-sensitive positions are tested for illegal drugs, see 14 C.F.R. § 135.251(a); a separate section of the regulations, Appendix I to 14 C.F.R. Part 121, establishes the standards for employers' drug testing programs. In addition to pre-employment and post-accident testing, an employer must conduct random testing: in any given year, a certain fraction of the company's employees --generally at least fifty percent -- must be selected at random for a drug test. See 14 C.F.R. Pt. 121, App. I, ¶ V.C.1,.5-.6 (hereinafter App. I). When an employee has been randomly selected, it is the employer's duty to ensure that the employee's drug test is "unannounced." Id. ¶ V.C.7.
For a small business such as Midwest, which has only two
employees aside from Duchek himself, the operation of a fullfledged internal drug testing program could be burdensome.
Department of Transportation regulations -- which apply in
addition to the FAA regulations in Appendix I, see id.
¶ I.B -- accordingly allow an employer to use a "consortium/third-party administrator" (C/TPA) to select employees
at random for testing, schedule tests, collect specimens, and
arrange for laboratory testing. See 49 C.F.R. §§ 40.3,
40.15(a); see generally 49 C.F.R. Pt. 40, Subpt. Q. As both
the FAA and DOT regulations make clear, however, the
employer retains the responsibility for compliance with the
testing requirements, even when it hires a C/TPA. App. I
¶ I.C; 49 C.F.R. § 40.15(c).
Midwest hired Clinical Collection Management, Inc. (CCM) as its C/TPA in August 1999. When the drug testing regulations took their current form in August 2001, see Procedures for Transportation Workplace Drug and Alcohol Testing Programs, 65 Fed. Reg. 79,462 (Dec. 19, 2000), Duchek took on the newly-created role of "designated employer representative" (DER) for Midwest. See 49 C.F.R. § 40.3. Midwest's random drug testing program thereafter involved two steps: CCM would send a quarterly notice to Duchek, as DER, listing the employees selected for testing, along with an individualized notice to be given to each employee. Duchek -- in his capacity as DER -- would then choose a date and time for each selected employee to report for testing, but would notify the employee only on the chosen date, instructing him to report immediately for testing. The individualized notice forms from CCM thus arrived at Midwest with only blank spaces for the specific date and time of the test; Duchek would fill in a date and time as part of choosing when to spring the drug test on the presumably unsuspecting employee.
On October 1, 2002, CCM selected Duchek and another employee, Jonathan Heslop, from the pool of Midwest employees eligible for testing in the fourth quarter of 2002. In Heslop's case, the system worked as it was supposed to: Duchek chose October 28 as the date for Heslop's test and instructed Heslop on that day to report promptly to CCM. With regard to himself, however, Duchek was somewhat in a bind: he was both the DER and the person to whom the DER was required to give unannounced instructions to report for testing. CCM's solution to this problem, its president later testified, was that a DER such as Duchek should contact CCM immediately upon opening the notification letter to arrange for a test on that day. Hr'g Tr. at 43-44. The test could take the form of a same-day visit by CCM to the DER's workplace, or a scheduled appointment for the DER to come to CCM on that day. Id. at 44. In the case of his fall 2002 selection, however, Duchek failed to contact CCM. He later explained to the FAA that a number of disruptive events had occurred in his business at the time and that he "just let the notice slip [his] mind and forgot to follow up." Statement of Events (Feb. 20, 2003), at 1; see also Hr'g Tr. at 152-53 (Duchek stating that he knew he was supposed to call CCM to schedule a test but he "mislaid the notice and ... forgot to call").
The FAA issued an emergency order revoking Duchek's airman certificates on March 20, 2003. As authority for the revocation, the FAA cited 14 C.F.R. § 61.14(b), which states that an airman's refusal to take a drug test as required under Appendix I is grounds for "[s]uspension or revocation of any certificate, rating, or authorization" issued to the airman. 14 C.F.R. § 61.14(b)(2). Appendix I, in turn, defines a "refusal to submit" to a drug test simply as "conduct specified in" the pertinent DOT regulation, 49 C.F.R. § 40.191. App. I ¶ II. That regulation provides, in pertinent part, that an employee has refused to take a test if he:
Fail[s] to appear for any test ... within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer. This includes the failure of an employee (including an owner-operator) to appear for a test when called by a C/TPA (see § 40.61(a)).
49 C.F.R. § 40.191(a)(1).
At the end of the long chain of cross-references, 49 C.F.R. § 40.61(a) -- a provision addressed to C/TPAs and other service agents who collect drug testing specimens -- states:
When a specific time for an employee's test has been scheduled, or the collection site is at the employee's work site, and the employee does not appear at the collection site at the scheduled time, contact the DER.... If the employee's arrival is delayed beyond [an appropriate] time, you must notify the DER that the employee has not reported for testing. In a situation where a C/TPA has notified an owner/operator or other individual employee to report for testing and the ...