Title Duchek v. National Transportation Safety Board
Argued March 9, 2004 Decided April 20, 2004
Subject Federal Agencies; Fourth Amendment
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 9, 2004 Decided April 20, 2004
No. 03-1185
CHARLES E. DUCHEK,
PETITIONER
v.
NATIONAL TRANSPORTATION SAFETY BOARD AND
FEDERAL AVIATION ADMINISTRATION,
RESPONDENTS
On Petition for Review of an Order of the
National Transportation Safety Board
James E. Ramsey argued the cause and filed the briefs for
petitioner.
Agnes M. Rodriguez, Attorney, Federal Aviation Adminis-
tration, argued the cause for respondents. With her on the
brief was Peter J. Lynch, Assistant Chief Counsel. Allan H.
Horowitz, Attorney, entered an appearance.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: GINSBURG, Chief Judge, and RANDOLPH and
ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge: The Federal Aviation Administra-
tion revoked Charles Duchek's three airman certificates, bas-
ing 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 regula-
tions do not support the FAA's action, and therefore vacate
the Board's order as arbitrary and capricious.
I.
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 pro-
grams. 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
3
(hereinafter App. I). When an employee has been randomly
selected, it is the employer's duty to ensure that the employ-
ee'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 full-
fledged 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 ``consor-
tium/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 regula-
tions took their current form in August 2001, see Procedures
for Transportation Workplace Drug and Alcohol Testing Pro-
grams, 65 Fed. Reg. 79,462 (Dec. 19, 2000), Duchek took on
the newly-created role of ``designated employer representa-
tive'' (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. Du-
chek -- 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, instruct-
ing 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.
4
On October 1, 2002, CCM selected Duchek and another
employee, Jonathan Heslop, from the pool of Midwest em-
ployees 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 4344. 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 15253
(Duchek stating that he knew he was supposed to call CCM
to schedule a test but he ``mislaid the notice and TTT 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 TTT within a reasonable
time, as determined by the employer, consistent with
applicable DOT agency regulations, after being directed
5
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 DERTTTT 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 employee does not appear,
the C/TPA must notify the employee that he or she has
refused to test (see § 40.191(a)(1)).
49 C.F.R. § 40.61(a).
Duchek challenged the revocation order, arguing that he
was not ``called'' for testing as required by Section
40.191(a)(1) and that he could not be held to have ``refused'' to
take a drug test, because no date and time for the test were
ever scheduled. See Amended Answer ¶¶ 2122. At a hear-
ing on April 17, 2003, an NTSB administrative law judge
heard testimony from Duchek and two other witnesses: the
president of CCM and an FAA investigator, Robert Neal.
Neal testified that for a drug test to be random under
Appendix I, it must be unannounced. Hr'g Tr. 114. The
ALJ found Neal's statement highly significant, and concluded
that ``there was no random drug test scheduled'' for Duchek,
because ``if there is an announcement, the test can't be
random, if it is open ended. And here it was open ended.''
Id. at 21619. The judge thus ruled that the FAA had not
established that Duchek had violated the regulations. Id. at
219.
6
The Board reversed:
It is true that, in a sense, Duchek's selection was not
unannounced in the same way it was for other employ-
ees.TTT It may be that the Administrator should recon-
sider the practices of allowing persons subject to testing
also to be DERs and not requiring the notice to the DER
to contain a time and date or period of time for the
scheduled testing. Without the latter specificity, the
rules are open to uncertainty in their application and an
element of this important program could be the subject
of time consuming and unnecessary litigation. In this
case, however, we are satisfied that respondent should be
held accountable for failing to ever appear for testing.
Administrator v. Duchek, NTSB Order No. EA-5040 (May
23, 2003), at 45 (Board Order).
The Board reasoned that ``as the DER, and owner of the
company, Duchek had a clear responsibility to comply with
the letter and spirit of the antidrug program.'' Id. at 5. It
found that Duchek was ``obliged to present himself for test-
ing'' as soon as he received notice from CCM that he was
among those selected for testing that quarter. Id. Rejecting
Duchek's proffered explanation of why he did not call CCM to
schedule the test, the Board stated:
T he responsibility was his, not CCM's. Reminding was
not a service CCM provided, nor could it realistically do
so. Under the regulations, the service agent may assist
the carrier in certain functions, not absolve it of its
primary responsibility to maintain a drug-free workplace.
Indeed, the quality of the assistance is only as good as
the information the client provides.
Id.
II.
Under the FAA's interpretation of the regulations, Duchek
was ``require d TTT, as the selected employee, to appear as
soon as possible after he was informed of his selection.''
FAA Br. at 31; see also Board Order at 5 (`` R ight after he
read the TTT letter from CCM identifying him as a random
7
testing subject, he was obliged to present himself for test-
ing.''). An agency is ordinarily entitled to ``substantial defer-
ence'' to its interpretation of its own regulations. Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (citing,
inter alia, Udall v. Tallman, 380 U.S. 1, 16 (1965)). Even
assuming that the FAA is entitled to deference for an inter-
pretation that encompasses not only FAA regulations, but
also DOT regulations applied by other agencies as well, see
Collins v. NTSB, 351 F.3d 1246, 1253 (D.C. Cir. 2003), the
FAA's interpretation would still not survive, because it is
``inconsistent with the regulation'' in two significant respects.
Thomas Jefferson Univ., 512 U.S. at 512 (internal quotation
marks and citation omitted); cf. Kennecott Utah Copper Corp.
v. U.S. Dep't of Interior, 88 F.3d 1191, 1210 (D.C. Cir. 1996)
(court will not resolve whether agency interpretation is enti-
tled to Chevron deference because interpretation would not
survive even if deference were given).
First, the FAA's interpretation seizes upon a provision of
the regulations -- the first sentence of 49 C.F.R.
§ 40.191(a)(1) -- that, by its terms, cannot readily be applied
to a DER such as Duchek. See FAA Br. at 19, 3132. The
provision states that an employee must appear for a drug test
``within a reasonable time, as determined by the employer,
consistent with applicable DOT agency regulations, after be-
ing directed to do so by the employer.'' 49 C.F.R.
§ 40.191(a)(1) (emphases added). It is the DER who carries
out the employer function of determining the reasonable time
for reporting -- the language ``within a reasonable time, as
determined by the employer'' dovetails neatly with the word-
ing of 49 C.F.R. § 40.61(a), which instructs the C/TPA to
consult with the DER ``to determine the appropriate interval
within which the DER has determined the employee is au-
thorized to arrive.'' And of course it is the DER who carries
out the employer function of directing selected employees to
report for testing in the first place.
The first sentence of Section 40.191(a)(1) applies quite
comfortably to someone in Heslop's position -- he is required
to appear within a reasonable time after being told by Duchek
to report for testing, and CCM should consult with Duchek to
8
establish exactly when to expect him -- but the first sentence
does not similarly apply to a selected DER such as Duchek.
The FAA argues that the receipt of the selection notice from
CCM functioned for Duchek in the same way that a direct
order from Duchek to report immediately to CCM functioned
for Heslop. But a selection notice and a blank form from a
C/TPA cannot be considered a ``direct ion TTT by the employ-
er'' equivalent to an order from a DER given -- along with a
form that has been filled in to indicate a specific date and
time -- to an employee. Nor, in such a case, is there any
mechanism for the C/TPA to find out what constitutes ``a
reasonable time, as determined by the employer,'' for the
DER to appear for the test. CCM could coordinate with
Duchek to find out the appropriate period within which a test
for Heslop would be timely, but would have no one to contact
at Midwest regarding Duchek's own test.
The second sentence of 49 C.F.R. § 40.191(a)(1), referring
to a failure ``of an employee (including an owner-operator) to
appear for a test when called by a C/TPA (see § 40.61(a)),''
initially looks more promising, since it specifically addresses
testing of owner/operators such as Duchek and the involve-
ment of C/TPAs. The FAA, however, chose not to rely on
that sentence, declaring that it ``does not apply on the facts of
this case,'' FAA Br. at 3132, apparently because the cross-
reference to Section 40.61(a) renders it applicable only to
cases where an individual's test has actually been scheduled.
See id. at 28. CCM did not schedule Duchek's test -- the
individualized form it sent for his test had the date and time
to report left blank, just like all the other forms.
The FAA defends its reliance on the first sentence of
Section 40.191(a)(1) by arguing that the foregoing difficulties
disappear if it is understood that the DER must contact the
C/TPA to schedule an immediate test as soon as he sees that
his name has come up for random testing that quarter. Such
an understanding, the FAA argues, is implicit in a sensible
reading of the regulations. Oral Arg. Tr. at 2021; see also
Board Order at 5 (FAA interpretation is ``the obvious conclu-
sion if the testing program is to have any integrity''). But
the FAA's rejoinder simply brings forth another inconsisten-
9
cy with the regulations: the FAA's interpretation is inconsis-
tent with the requirement in Appendix I that `` e ach employ-
er shall ensure that random drug tests TTT are unannounced.''
App. I ¶ V.C.7. Only by granting the assumption that a DER
will always immediately contact the C/TPA to schedule his
test upon opening the letter selecting him for one can the
requirement that the DER's test be unannounced be satisfied.
See Hr'g Tr. at 135 (Neal testimony) (``When notice of
selection is received in the mail, the only way it would be
unannounced is if the DER went as soon as he opened up
the mail.'').
As the ALJ observed, however, under the FAA's view a
DER can simply claim to have opened the notice later than he
actually did. Hr'g Tr. at 218 (requirement that DER call
when he receives selection notice ``leaves so many loopholes
that it is almost frightening, because all a person has to do is
say, hey, I didn't open the mail until Friday, when in fact they
opened it Monday, and they didn't do drugs all week, so that
just defeats the purpose''). Indeed, a DER who recognizes
an envelope from a C/TPA -- and perhaps appreciates that it
is the first week of the quarter, when random selections are
made -- would not even have to lie about when he opened the
envelope: he could simply set it aside long enough to allow
any traces of illegal drugs to leave his system. The FAA's
interpretation not only requires a hypothetical drug-using
DER to call and schedule a (presumably fateful) test immedi-
ately upon opening a selection notice, but requires him to do
so to comply not with the letter of the regulations, but with
their ``spirit.'' FAA Br. at 39; Oral Arg. Tr. at 32.
The Board was willing to indulge the assumption underly-
ing the FAA's interpretation, see Board Order at 5 n.6
(``Contrary to the ALJ , we will not assume the likelihood of
DER cheating.''), but we are not. A sport such as golf can
have a system of rules grounded on the assumption that
participants will in good faith call penalties on themselves, but
such an approach seems ill-advised when it comes to design-
ing regulations to protect the public from drug use by those
in safety-sensitive positions -- and in fact that is not the
approach reflected in these regulations. Indeed, the FAA's
10
assumption flies in the face of the entire regulatory scheme,
which specifically requires drug tests to be random, unan-
nounced, and spread throughout the year, see App. I ¶ V.C.7,
precisely because some employees -- including DERs -- may
attempt to evade their tests. The regulations foreclose any
assumption that a DER who is already using illegal drugs will
nonetheless handle his own selection notice with impeccable
scrupulousness and truthfulness -- to his inevitable and
substantial detriment.
The FAA argues that its action has a basis in NTSB
precedent, relying on Administrator v. Wright, NTSB Order
No. EA-4895 (May 17, 2001), 2001 WL 540575. In Wright,
the FAA revoked the certificates of a mechanic who left work
before the scheduled end of his shift after being told that he
had been selected for drug testing and that the test would
occur in forty-five minutes. Id. at *1. As the FAA points
out, the Board in Wright reasoned that there was ``nothing in
the record which indicates that respondent was unaware that
he had been selected, in accordance with FAA requirements,
for random drug screening.'' Id. at *2. The FAA argues
that the same is true here: the record unequivocally indicates
that Duchek knew his name had been randomly selected for a
drug test. FAA Br. at 3839. But it is overwhelmingly clear
that the Board in Wright used the word ``selected'' to encom-
pass both the random selection of Wright for testing and the
scheduling of the test for that day. Wright thus provides no
support for the Board's decision to revoke Duchek's certifi-
cates.
Even if we assume arguendo that the enforceable ``spirit''
of the regulations required Duchek to call CCM immediately
to schedule his own test, FAA Br. at 39, any failure to do so
would be a failure as a DER, not as an individual airman.
The regulations provide no basis for revoking the certificates
of an individual airman when his employer or DER fails to
schedule a random drug test for him. Moreover, as the FAA
conceded at oral argument, the regulations would not penalize
a DER for failing to schedule an employee's test. If Duchek
had failed to schedule a test for an employee such as Heslop,
Duchek would not have faced the revocation of the certificates
11
that he held as an individual. Oral Arg. Tr. at 2829.
Indeed, the employer is ``responsible for all actions of its
officials, representatives, and service agents'' in carrying out
the FAA and DOT drug testing requirements. App. I ¶ I.C.
Duchek has thus consistently argued that Midwest, rather
than he, should be held responsible for his failure to be
tested. See Amended Answer at 7 ¶ 27; Hr'g Tr. at 141, 174;
Pet. Br. at 1617. In response, the FAA argues that Duchek
``cannot hide behind Midwest as an excuse for his failure as
an employee to submit to required drug testing,'' and that
Duchek's position rests on ``formalistic distinctions between
himself as DER for Midwest and himself as a TTT safety-
sensitive employee.'' FAA Br. at 16, 37.
The distinction may be formalistic to a degree, but it --
unlike the FAA's position -- has a basis in the regulations, as
just noted, and in NTSB precedent. In Administrator v.
DiazSaldana, NTSB Order No. EA-165 (June 3, 1970), 1970
WL 9437, the Board discussed ``whether it is appropriate to
apply a sanction to the airman certificate because of a viola-
tion committed as an operator.'' Id. at *2. DiazSaldana's
company had operated approximately 100 flights in violation
of applicable regulations; because the airman had personally
served as a crew member on only two of the flights, however,
the Board determined that his ``conduct reflect ed more
directly on his fitness as an operator than on his qualifications
to hold an airman certificate,'' and decided not to revoke his
pilot certificate. Id. at *3. In a later case involving the same
operator, the Board reiterated that ``the fact that the respon-
dent was acting in his capacity as an operator rather than a
pilot TTT ha s a significant bearing on the question of sanc-
tion.'' Administrator v. DiazSaldana, NTSB Order No.
EA-337 (June 7, 1972), 1972 WL 17060, at *3.
The Board's opinion upholding the FAA's interpretation
frequently ignores the distinction between Duchek and his
company. In a single paragraph central to its analysis, for
example, the Board states that ``the responsibility for calling
to schedule a test was his, not CCM's'' and that ``the service
agent may assist the carrier in certain functions, not absolve
12
it of its primary responsibility to maintain a drug-free work-
place.'' Board Order at 5. Under the regulations, however,
the responsibility for calling to schedule a test was the
DER's -- thus Midwest's -- and Duchek, as an airman, is not
a Part 135 ``carrier'' (or an ``it'') responsible for implementing
an adequate drug testing program. The legally significant
distinction between Duchek's airman certificates and Mid-
west's operating certificate -- which is evident in the regula-
tions and in the Diaz-Saldana cases -- disappears in this
portion of the Board's opinion. To the extent, however, that
the C/TPA arrangement between Midwest and CCM was
flawed -- in that it did not require CCM to assume schedul-
ing responsibilities when a DER was selected for testing, or
otherwise address the problem of selecting and scheduling a
DER for testing consistent with the regulations -- the blame
for that lies with Midwest or CCM or both, not with the DER
as an airman.1
* * *
As the NTSB admitted in this case, the obligations of
DERs under the regulations are unclear. The Board ulti-
mately found that it was ``satisfied'' that Duchek should be
held accountable, but it reached that level of satisfaction only
by invoking the ``spirit'' of the regulations, by accepting an
FAA interpretation that is inconsistent with the text and
purpose of the regulations, and by arbitrarily targeting Du-
chek's individual airman certificates when the governing reg-
ulations -- and analogous precedent -- indicate that employ-
ers should bear the responsibility for carrying out the FAA's
drug testing requirements. The Board's action violates the
Administrative Procedure Act as ``arbitrary, capricious, TTT or
otherwise not in accordance with law,'' 5 U.S.C. § 706(2)(A),
and we now set it aside. The petition for review is granted
and the Board's order is vacated.
1 In light of our conclusion that the FAA's action in this case was
inconsistent with the regulations, we need not and do not address
Duchek's argument, see Pet. Br. at 2429, that the regulations, as
interpreted by the FAA, were unconstitutional as applied to him.
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