Greg Reigel's Aero Legal Services

Drug Testing Refusal Cases: Worthy of Appeal?

By Gregory J. Reigel

© March, 2010 All rights reserved.

If you work in a safety-sensitive position for an employer subject to Department of Transportation drug and alcohol testing requirements (e.g. Part 121 and 135 carriers, as well as maintenance providers who maintain aircraft on behalf of those carriers, or operators who conduct non-stop sightseeing flights for compensation or hire under FAR 91.147), you have likely been asked at some point during your employment to submit to a drug or alcohol test. You are also probably aware of the severe consequences imposed upon a safety-sensitive employee for failure to submit to a test when requested (termination of employment, revocation of the employee's airman certificates, to name a few).

However, what happens when the employee believes he or she is complying with a request but the employer regards the employee's conduct as a refusal? Well, when the FAA initiates a revocation action, the employee will, unfortunately, have to defend his or her rights. But an airman/employee in that situation isn't without hope, as we see in a recent National Transportation Safety Board ("NTSB") case.

The Case

In Administrator v. Rojas, the NTSB affirmed an administrative law judge's ("ALJ") dismissal of an emergency order revoking all of an airman's certificates for allegedly refusing to submit to a drug test. The FAA's revocation order alleged that the airman, a pilot for Pinnacle Airlines, refused to submit to a drug test in violation of FAR Part 121, App. I (previously defining refusal to submit to a drug test, but now replaced by 49 C.F.R. Part 40), FAR 67.107(b)2 (a refusal to submit to a drug or alcohol test is considered "substance abuse", a disqualifying medical condition) and 49 C.F.R. § 40.191(a)(1) (defining "refusal" to submit to a drug test). As a result, the FAA issued an emergency order revoking all of the airman's certificates. The airman then appealed the FAA's order to the NTSB for a hearing before an ALJ.

The Hearing Before The ALJ

At the hearing, the FAA presented evidence in support of its allegations that the airman had been selected for a random drug test, was notified of the drug test and then refused to submit to the drug test. The airman presented evidence that the airline employee who allegedly notified him of the drug test never received training relating to drug-testing and, in fact, after notifying the airman of his selection for testing then told the airman that he did not need to submit to the test until a later time.

At the conclusion of the hearing, the ALJ determined that the airman's evidence was more credible. He specifically found that although the airman did not take the drug test, he did not lack the qualifications to hold an ATP or first-class medical certificate as alleged by the FAA. Further, he credited witness testimony that the airline employee withdrew her request for a drug test, and did not notify the airman that she would consider his statement concerning the lack of sufficient time to complete the test to be a refusal. Of course, the FAA then appealed the ALJ's decision to the full Board.

The Appeal To The NTSB

On appeal, the FAA argued that the ALJ's decision was contrary to the weight of the evidence, and that his conclusions of law were wrong. The FAA took the position that the airman's intentions were irrelevant. According to the FAA, when presented with a request to submit to a drug test, you either take or you don't. Since the evidence presented by the FAA showed that the airman did not take the test, the FAA argued that the airman refused the test.

The Board initially observed that much of the ALJ's decision was based upon his credibility determinations and that "resolution of a credibility determination, unless made in an arbitrary or capricious manner or unless clearly erroneous, is within the exclusive province of the law judge." It went on to note that it could not withhold deference to an ALJ's credibility findings simply because other evidence in the record could have been given greater weight by the ALJ.

Next, the Board stated that "cases concerning refusals to submit to drug tests involve fact-specific inquiries." It then held that, based upon the evidence credited by the ALJ, it could not find that the airman's conduct constituted a refusal. The Board further concluded that the ALJ's credibility determinations were not arbitrary, capricious, or contrary to the weight of the evidence, despite the FAA's attempts to re-argue facts that the ALJ had clearly discounted.

Conclusion

This case highlights the merit of appealing a revocation order based upon an alleged refusal to submit to drug-testing. Given the appropriate facts, as were present in this case, it is possible to have the FAA's order dismissed, if the airman can persuade the ALJ that he or she did not refuse to submit to the drug test. Unfortunately, this isn't always possible. However, if the airman is successful, this case demonstrates that the Board should defer to the ALJ's decision if/when the FAA appeals.