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Dustman v. Huerta

United States District Court, N.D. Illinois, Eastern Division

May 30, 2014

ANDREW DUSTMAN, Petitioner,
v.
MICHAEL P. HUERTA, Administrator, Federal Aviation Administration, Respondent.

MEMORANDUM OPINION AND ORDER

ELAINE E. BUCKLO, District Judge.

In this proceeding, petitioner[1] Andrew Dustman seeks reversal of the final decision of the National Transportation Safety Board (the "NTSB" or the "Board") to revoke his unrestricted medical certificate. On October 23, 2013, I held that to obtain this relief, petitioner must establish, based on the existing administrative record, that the NTSB's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, ' pursuant to 5 U.S.C. § 706(a)(2)." Dustman v. Huerta, 2013 WL 5747079, *6 (N.D. Ill. Oct. 23, 2013). That decision settled, among other issues, the parties' dispute concerning the scope and standard of district court review of NTSB decisions of this nature in the wake of the Pilot's Bill of Rights, Pub.L. No. 112-153, 126 Stat. 1159 (2012), which Congress enacted in August of 2012.

The Administrator has filed for summary judgment affirming the NTSB's decision. Having reviewed the administrative record and the parties' respective submissions, I grant the Administrator's motion for the following reasons.

I.

The Federal Aviation Regulations (FAR) set forth standards for the issuance of airman medical certificates requiring that pilots have no history or diagnosis of "substance dependence, except where there is established clinical evidence, satisfactory to the Federal Air Surgeon, of recovery, including sustained total abstinence from the substance(s) for not less than the preceding 2 years." 14 C.F.R. §§ 67.107(a)(4), 67.207(a)(4), 67.307(a)(4). "Substance dependence" means "a condition in which a person is dependent on a substance...as evidenced" by any one of the following factors: "(A) Increased tolerance; (B) Manifestation of withdrawal symptoms; (C) Impaired control of use; or (D) Continued use despite damage to physical health or impairment of social, personal, or occupational functioning." 14 C.F.R. §§ 67.107(a)(4)(ii). An airman meets the FAA criteria for alcohol dependence-and thus is ineligible for a medical certificate-if he or she manifests a medical history or clinical diagnosis of one of the enumerated factors during his or her lifetime. See id.

The facts culminating in the FAA Administrator's decision to revoke petitioner's unrestricted medical certificate are not in dispute. Indeed, petitioner declined to respond to the Administrator's L.R. 56.1 Statement of Undisputed Material Facts, effectively admitting their truth.[2] See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) ("We have consistently held that a failure to respond by the nonmovant as mandated by the local rules results in an admission.") (Citation omitted). The parties' disagreement is not over the facts but over their proper interpretation: specifically, whether they establish that petitioner meets the criteria for alcohol dependence under the Federal Aviation Regulations ("FAR"), 14 C.F.R. §§ 67.107(a)(4), 67.207(a)(4), and 67.307(a)(4). The following factual summary is drawn from the Administrator's L.R. 56.1 statement and my own review of the record.

Petitioner is a pilot who was issued a First Class Airman Medical Certificate in each of 2008, 2009, and 2010. On November 28, 2010, petitioner was involved in a car accident while attempting to drive home from a party at which he had consumed at least 10, and possibly as many as 19, alcoholic drinks over a period of roughly four hours. Police arrived on the scene of the accident and arrested petitioner on suspicion of driving under the influence of alcohol. A Breathalyzer test revealed that petitioner's blood alcohol level ("BAC") was 0.239, or nearly three times the legal limit in Illinois. Petitioner pled guilty to driving under the influence of alcohol. His driver's license was suspended for six months, and he was ordered to submit to drug and alcohol evaluation, among other measures.

After being informed of petitioner's alcohol-related auto accident, the FAA requested that petitioner submit evidence from which to evaluate his continuing eligibility for medical certification. Pursuant to this request, petitioner submitted a statement of his past and present alcohol use and circumstances surrounding the offense; the police report and court records relating to the offense; two substance abuse evaluations from Countermeasures, Inc., an alcohol evaluation and treatment facility; and letters by Dr. Peter Lambrou, a senior Aviation Medical Examiner, Dr. Kenneth Thompson, a Human Intervention Motivational Study (HIMS) psychiatrist, and Ms. Francis Campbell, a certified addictions registered nurse, all of the Center for Aviation Medicine.

Dr. Charles Chesanow, the FAA's Chief Psychiatrist, reviewed this evidence and other documents in petitioner's airman medical file and concluded that petitioner met two of the criteria for alcohol dependence. In a memorandum to Dr. Matthew Dumstorf, Deputy Regional Flight Surgeon, dated June 12, 2012, Dr. Chesanow summarized the facts contained in the Thompson, Lambrou, and Campbell letters. R. at 580-81. He disagreed with Dr. Lambrou and Ms. Campbell's conclusion that petitioner was not alcohol dependent, stating that "neither one of these evaluations seem to consider Mr. Dustman's history of binge drinking." Dr. Chesanow observed that Dr. Thompson did note a history of binge drinking and that he recommended monitoring petitioner's drinking patterns. Dr. Chesanow concluded that petitioner met the FAR criteria for alcohol dependence based on evidence of increased tolerance (purposeful functioning after drinking in excess of 10 drinks) and evidence of impaired control of use (a pattern of regular binge drinking and history of blackouts).

On September 11, 2012, the Great Lakes Regional Flight Surgeon advised petitioner that he was not qualified to hold any class of medical certificate. On January 13, 2013, the Administrator issued an Emergency Order of Revocation, revoking petitioner's airman medical certificate. The successive appeals of that order lead us to the present.

II.

The central issue in the administrative proceedings was whether the Administrator had established, by a preponderance of the evidence, that petitioner met the FAR criteria for alcohol dependency. The administrative law judge who heard petitioner's appeal issued an oral ruling concluding that he had not, R. 771-791, but the full Board reversed the ALJ's decision in a written opinion. Id. at 923-959. At this juncture, the question is not whether the Administrator met his burden of proof, but whether the NTSB's conclusion that he had was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Accordingly, I begin my analysis by examining the Board's decision in some detail.

The Board first set forth the factual and procedural background of the case, then identified the legal standard governing its analysis. The Board explained that although the NTSB "give[s] deference to our law judge's rulings on certain issues, such as credibility determinations or evidentiary rulings, " it "review[s] the case, as a whole, under de novo review, " thus rejecting petitioner's argument that the Board could reverse the ALJ's decision only if it was "arbitrary and capricious." R. 928.

The NTSB observed that this case turned on the "medical evidence, " identifying Dr. Dumstorf, Dr. Chesanow, Dr. Lambrou, Dr. Thompson, and Ms. Campbell as the primary sources of that evidence, along with Dr. Stephen Dinwiddie, whom it described as "a ...


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