FAA Must Follow Its Own Rules: Why Appeals Court Ruling Sends Strong Message on Drug Testing Authority

The U.S. Court of Appeals for the District of Columbia Circuit ruled against the FAA for failing to follow its own guidance in denying a certificate holder due process in an alleged refusal to submit to a drug test.

The court underscored that certain government functions can’t be delegated and opined on when guidance becomes binding on the agency.

The story starts in Vietnam on March 20, 2024, where Ryan Paul, a pilot for cargo airline Amerijet International, Inc, was on vacation. He was expected back at his home base in Seattle by March 30 to resume flying in April.

However, Paul contracted a severe sinus infection that delayed his return. While recuperating, the company notified him on April 2 he had been activated for duty and selected for a random drug test in Seattle the same day. Paul advised it was impossible.

The company responded by:

• Determining he had refused to test
• Notifying the FAA
• Reporting the refusal to the FAA’s Pilot Records Database (PRD)
• Terminating his employment

The FAA’S Drug Abatement Division advised Paul that it was not taking legal enforcement action but was referring the refusal to the FAA’s Office of Aerospace Medicine.

He was therefore prohibited (49 CFR § 40.285) from performing safety sensitive duties until completing the Substance Abuse Professional evaluation, referral and education process.

When Paul urged the FAA to reconsider the refusal determination, the agency admitted, “In accordance with 49 CFR § 40.355(i), refusal determinations are made by the employer. The FAA did not make a refusal determination regarding Mr. Paul’s drug test.”

Paul’s petition for court review asked for:

• The refusal finding to be vacated and removed from the PRD
• Amerijet to be informed he had not refused in the first place

The Court shared its focus as, “Whether the FAA erred by failing to act—that is, whether the FAA must review an employer’s test-refusal determination.”

The Court determined there were no regulations or statutes directing or prohibiting FAA’s review of refusal findings. Eventually, the Court turned to guidance, in particular the Drug and Alcohol Compliance and Enforcement Surveillance Handbook (Order 9120.1E).

That Order assigns the division with responsibility for determining noncompliance (in this case, test refusal) and evaluating whether compliance action is warranted.

There are repeated references to employer test refusal reports as “allegations” (not determinations or findings). Employee investigations can only result in two outcomes:

• Legal enforcement action
• No action

The court determined that the government retains ultimate authority to approve, disapprove or modify the private entity’s actions and decisions on delegated matters. The agency cannot avoid its responsibility to review employers’ test refusal determinations.

“[I]f the FAA is correct that it bears no responsibility to review private employers’ determinations that their employees refused a government mandated drug test, then those employers would effectively decide who can fly under federal law without any [government] review of [their] decision[s] on the merits,” the Court said.

Given the serious constitutional overtones in the case (i.e., whether Paul had been denied due process), the Court followed past holdings that in limited circumstances nonlegislative rules may be binding on an agency when they affect an individual’s rights.

“[W]e interpret the Handbook to require FAA review of private employers’ test-refusal determinations. Declining to enforce that requirement against the FAA and leaving the test-refusal determination entirely to the discretion of private employers would raise severe constitutional concerns…the FAA concedes that it did not follow that requirement,” the Court said.

Rather than evaluating whether Paul had refused to test, the Court remanded the case to the FAA to “follow its own procedures and conduct the necessary review.”

The case makes clear the FAA must do its job. When the organization’s job—as defined by guidance—affects individual rights, those instructions are binding on the government, even without prohibitions or requirements in the rules.

The Court’s lesson is to question authority.

Paul was put in an impossible position that led to an absurd outcome. Rather than rolling over, he stood up to the agency and questioned its decision-making.

His case is a reminder that citizens need to hold the government accountable and maintain the right to do so.