Ryan Paul v. FAA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 21, 2025 Decided February 27, 2026

No. 24-1348

RYAN J. PAUL,

PETITIONER

v.

FEDERAL AVIATION ADMINISTRATION,

RESPONDENT

On Petition for Review of an Order

of the Federal Aviation Administration

Stephanie G. Spanja argued the cause for petitioner. With

her on the briefs was M. Antonia Bird.

Jaynie Lilley, Attorney, U.S. Department of Justice,

argued the cause for respondent. With her on the briefs were

Yaakov M. Roth, Principal Deputy Assistant Attorney General,

Brett Shumate, Assistant Attorney General, and Courtney

Dixon, Attorney.

Before: CHILDS and GARCIA, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARCIA.

2

Concurring opinion filed by Senior Circuit Judge

RANDOLPH.

GARCIA, Circuit Judge: Federal law requires private

airlines to conduct random drug testing of their pilots and to

report any pilot’s refusal to test to the Federal Aviation

Administration (FAA). A pilot’s refusal triggers several

immediate and significant legal consequences.

This case concerns whether the FAA, upon receiving such

a report, must independently review an airline’s determination

that one of its pilots refused to test. We hold that it must. The

FAA’s internal guidance—the Drug and Alcohol Compliance

and Enforcement Surveillance Handbook—plausibly requires

such review. And we read the Handbook to compel that

procedural step because concluding otherwise—that is,

concluding that the FAA has entirely outsourced those

determinations to private employers without any meaningful

form of review—would raise serious constitutional concerns.

Because the FAA concedes that it conducted no such

review here, we hold that the agency arbitrarily and

capriciously departed from its own procedures.

I

A

Congress has instructed the FAA to “promote safe flight

of civil aircraft” by prescribing regulations “necessary for

safety in air commerce.” 49 U.S.C. § 44701(a)(5). To that end,

the FAA requires pilots to hold two certificates: a medical

certificate and an airman certificate (also called a pilot

certificate). See 14 C.F.R. §§ 61.3(a), (c), 61.23(a).

Congress has also instructed the FAA to, “[i]n the interest

of aviation safety,” “prescribe regulations that establish a

program requiring air carriers . . . to conduct . . . random . . .

3

testing of airmen . . . for the use of a controlled substance.” 49

U.S.C. § 45102(a)(1). Accordingly, with some exceptions not

relevant here, the FAA requires private airlines to conduct

“random drug testing” on at least half of their “covered

employees” annually. 14 C.F.R. § 120.109(b)(1). “[N]o part”

of that testing “shall be conducted outside the territory of the

United States.” Id. § 120.123(a). And if a pilot “[f]ail[s] to

appear for any test . . . within a reasonable time, as determined

by the employer,” the pilot is considered to have “refused to

take a drug test.” 49 C.F.R. § 40.191(a)(1); see also 14 C.F.R.

§ 120.7.

An employer must “notify the FAA within 2 working days

of any covered employee who holds [a medical or airman

certificate] who has refused to submit to a drug test.” 14 C.F.R.

§ 120.111(d). Upon receiving such notice, the FAA’s Drug

Abatement Division opens an investigation. See Respondent’s

Brief 7; see also 49 U.S.C. § 44709(b)(1)(A). “[A]fter

conducting” that “investigation,” the FAA “may issue an

order” to “suspend[]” or “revok[e]” the pilot’s medical and/or

airman certificates. 49 U.S.C. § 44709(b)(1)(A); 14 C.F.R.

§ 120.11(b)(2). If the FAA takes such an “adverse[]”

enforcement action against the pilot’s certificates, the pilot can

appeal to the National Transportation Safety Board. See 49

U.S.C. § 44709(d).

Beyond the possible loss of the pilot’s certificates, a test

refusal carries several additional consequences.

First, a pilot who “refus[ed] to test” “cannot again perform

DOT safety-sensitive duties for any employer until and unless

[he] complete[s]” an “evaluation, referral, and

education/treatment process.” 49 C.F.R. § 40.285; see also id.

§ 40.191(c); 14 C.F.R. § 120.113(d)(4). This return-to-duty

process involves an initial “evaluation” by a substance abuse

professional, followed by “treatment,” “education,” “re-

4

evaluation,” and “follow-up testing” as the substance abuse

professional may require. See 49 C.F.R. §§ 40.281–40.311.

Second, a test-refusal determination immediately prohibits

the holder of a medical certificate from performing safety-

sensitive duties until he also secures a new medical certificate

that is issued “after the date of the . . . refusal to test.” 14

C.F.R. § 120.113(d)(2), (4). Relatedly, “[t]o be eligible for” a

new medical certificate, the pilot must not have “refus[ed] to

submit to a drug . . . test” “within the preceding 2 years.” Id.

§§ 67.101, 67.107(b)(2), 67.201, 67.207(b)(2), 67.301, 67.307

(b)(2).

Third, “within 30 days” of “[t]he date of the [employee’s]

refusal to submit to testing,” the employer must “report” such

refusal to an FAA-run database called the Pilot Records

Database. 14 C.F.R. § 111.220(a)(1), (c); see also 49 U.S.C.

§ 44703(i)(4)(B). Prospective employers “shall access and

evaluate” an individual’s Pilot Records Database records “in

deciding whether or not to hire the individual as a pilot.” 49

U.S.C. § 44703(i)(1), (2), (9); see also 14 C.F.R. § 111.105.

The Pilot Records Database is not publicly available. See 14

C.F.R. §§ 111.1, 111.15. And “[n]o” prospective employers

“may retrieve records” therein “pertaining to any pilot prior to

receiving that pilot’s written consent.” Id. § 111.120(a).

B

Petitioner Ryan Paul was a pilot for Amerijet

International, Inc., a cargo airline. Amerijet, as required by

law, conducts random drug testing on its pilots.

On March 20, 2024, Paul—off-duty at the time—was in

Vietnam for a personal trip. According to Paul, he had planned

to return to his home base of Seattle by March 30, 2024,

because Amerijet had scheduled him for duty the following

5

month. But he “was prevented from doing so due to a severe

sinus infection.” J.A. 61.

On April 2, 2024, Amerijet informed Paul that it had

activated him for duty and selected him for a random drug test.

Amerijet requested that Paul report for testing that very same

day in Seattle. Paul—still in Vietnam—explained that it was

impossible for him to do so. Amerijet then determined that

Paul had refused a required drug test.

On April 4, 2024, Amerijet notified the FAA that Paul had

refused to submit to testing. Five days later, Amerijet

terminated Paul’s employment. According to Paul, Amerijet

also reported his test-refusal status to the Pilot Records

Database.

The FAA, in turn, corresponded with Paul regarding

Amerijet’s report.

First, on April 5, 2024, the FAA’s Drug Abatement

Division sent Paul a letter, stating in relevant part:

We are investigating information indicating you

refused to submit to a Department of

Transportation (DOT)/Federal Aviation

Administration (FAA) random drug test

directed by Amerijet International, Inc. on

April 2, 2024. . . . The nature of this

investigation is to determine whether you

refused to submit to a DOT/FAA random drug

test as reported to us and described above, and

if so, what, if any, enforcement action should be

taken.

J.A. 22. Through an attorney, Paul responded in writing that

based on the “pertinent facts,” he “did not refuse to submit to a

DOT/FAA random drug test.” J.A. 54.

6

Second, on August 27, 2024, the Drug Abatement

Division sent Paul another letter, this time stating:

We have concluded our investigation into your

refusal to submit to a Department of

Transportation (DOT)/Federal Aviation

Administration (FAA) random drug test

directed by Amerijet International, Inc. on

April 2, 2024. This correspondence is to inform

you that we are not taking any legal

enforcement action against you in connection

with your refusal to submit to testing but have

referred this matter to the FAA’s Office of

Aerospace Medicine. In accordance with 49

CFR § 40.285, an individual who refuses to

submit to any DOT test cannot perform any

DOT safety-sensitive duties for any employer

until the individual has completed the

Substance Abuse Professional (SAP)

evaluation, referral, and education/treatment

process, as required by 14 CFR Part 120 and 49

CFR Part 40, Subpart O.

J.A. 66. Paul urged the FAA to reconsider, again writing

through his attorney that “the conclusion that Mr. Paul

‘refused’ to appear for a DOT/FAA random drug test was in

error.” J.A. 68.

Third, on October 24, 2024, the Drug Abatement Division

emailed Paul’s attorney the following message:

As previously explained to Mr. Paul, 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. Our letter to Mr.

Paul simply informed him that the FAA is not

7

pursuing legal enforcement action regarding

this matter and noted the return-to-duty

requirements in 49 CFR 40.285 for individuals

who have refused to submit to DOT testing.

J.A. 76.

Paul then filed his petition for review in this court. He

seeks an order (1) “vacat[ing]” the FAA’s “finding” that Paul

“refused to submit” to a drug test, (2) “affirm[ing] the FAA’s

determination not to seek enforcement action,” (3) compelling

the FAA to “remove all records reflecting” Paul’s test-refusal

status from the Pilot Records Database, and (4) directing “the

FAA to advise Amerijet” Paul did not refuse a drug test “within

the meaning of the DOT/FAA testing regulations.”

Petitioner’s Brief 38–39.

II

As always, we begin with jurisdiction.

We have jurisdiction to review the FAA’s August 27,

2024, letter as an “order” of the FAA. 49 U.S.C. § 46110(a).

In that letter, the FAA assumed, without explanation, that Paul

“refus[ed] to submit to testing.” J.A. 66. That assumption

“mark[ed] the consummation” of the FAA’s “decisionmaking

process” and “g[a]ve rise to legal consequences.” City of

Dania Beach v. FAA, 485 F.3d 1181, 1187 (D.C. Cir. 2007)

(internal quotation marks omitted). This renders the order final

and reviewable. Id.

Our jurisdictional inquiry does not end there. Although

the FAA does not dispute Paul’s Article III standing, we have

“an independent obligation to assure that standing exists.”

Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009). To

establish standing, Paul must show (1) an “injury in fact” that

is “concrete and particularized” and “actual or imminent,” (2)

a “causal connection between the injury and the conduct

8

complained of,” and (3) a sufficient “likel[ihood]” that “the

injury will be redressed by a favorable decision.” Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (cleaned up).

On a petition for review of agency action, Paul must support

his standing “by affidavit or other evidence.” Sierra Club v.

EPA, 292 F.3d 895, 899 (D.C. Cir. 2002).

There is ordinarily “little question” that a petitioner has

standing when he is the “object of the action (or forgone action)

at issue.” Sierra Club, 292 F.3d at 900 (quoting Lujan, 504

U.S. at 561–62). So it is here. Paul claims future “economic

damage from the loss of his first-class medical certificate for

two years.” Petitioner’s Brief 19 (citing 14 C.F.R. §§ 67.101,

67.107). “Assum[ing]” Paul “will prevail on the merits,”

LaRoque v. Holder, 650 F.3d 777, 785 (D.C. Cir. 2011), that

injury stems from the FAA’s failure to review Amerijet’s test-

refusal determination. And a favorable decision could redress

this injury by mandating such review.

Paul has also shown that the risk of such economic damage

is “sufficiently imminent.” Fair Emp. Council of Greater

Washington, Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1273

(D.C. Cir. 1994) (internal quotation marks omitted). The

petition adequately conveys, with supporting evidence, that

Paul intends to resume work as a pilot “in the reasonably near

future.” Cf. id. at 1274 (no standing for prospective relief when

it was “highly implausible that [the plaintiffs] would ever

return [to their employer] as bona fide job seekers”).

Specifically, Paul’s petition seeks relief to mitigate the

“devastating short . . .-term impacts on his aviation career.”

Petitioner’s Brief 35 (emphasis added). An exhibit attached to

the petition shows that Paul had been a pilot—and had no

employment outside aviation—since at least 2017. See

J.A. 30. Paul’s counsel, moreover, has represented that Paul

has completed at least the initial steps of the return-to-duty

process, a further indication Paul seeks to resume flight duties.

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See Tr. of Oral Arg. 33; Petitioner’s Post-Argument Letter 2;

see also 49 C.F.R. § 40.285.

III

Satisfied that we have jurisdiction, we turn to the merits.

Paul, in essence, requests that we “set aside” the FAA’s

“finding” that he “refus[ed] to submit to testing” because the

FAA “fail[ed] to explain the basis of its finding.” Petitioner’s

Brief 15, 19–20. The FAA does not dispute its lack of

explanation. Instead, the FAA claims that it “made no [such]

factual finding” in the first place, and that the “factual

determination is made by Paul’s employer.” Respondent’s

Brief 18. The pertinent question, then, has become whether the

FAA erred by failing to act—that is, whether the FAA must

review an employer’s test-refusal determination.

It must. The parties point to no statutory or regulatory

provision that directly addresses the question. But the FAA’s

internal guidance can be read to require FAA review of an

employer’s test-refusal determination. And that reading is

necessary to avoid serious constitutional questions raised by the

FAA’s litigation position. We accordingly hold that the FAA

arbitrarily and capriciously departed from its guidance by

failing to review the test-refusal determination.

A

Neither the relevant statutes nor regulations speak to

whether the FAA must (or must not) review an employer’s test-

refusal determination.

Start with the statutes. The only potentially relevant

statutory provision brought to our attention gives the FAA

discretion to “delegate to a qualified private person” matters

“related to” the “examination, testing, and inspection necessary

to issue a [medical or airman] certificate.” 49 U.S.C.

§ 44702(d)(1). It then allows persons “affected by an action of

10

a private person under this subsection” to “apply for

reconsideration of the action by the Administrator.” Id.

§ 44702(d)(3). But the parties agree that “[a]n employer’s drug

testing program is not a delegation relating to the issuance of

certificates,” and so Section 44702(d) does not “authorize[] the

FAA to review the employer’s report of refusal.” Respondent’s

Post-Argument Letter 3; see also Petitioner’s Post-Argument

Letter 4 (“[W]e agree with the FAA that this provision applies

to FAA-issued certificates and is inapplicable to the issues in

this petition.”). We assume without deciding that the parties

are correct.

Next, the regulations. The FAA argues that two regulatory

provisions—14 C.F.R. § 120.111(d) and 49 C.F.R.

§ 40.355(i)—make clear that the FAA will not review an

employer’s determination that an employee refused a drug test.

See Respondent’s Brief 19. We are not persuaded.

The first provision simply states that “[e]ach employer

must notify the FAA within 2 working days of any covered

employee who . . . has refused to submit to a drug test.” 14

C.F.R. § 120.111(d). It says nothing about whether the FAA

will review the employer’s determination.

The second provision initially appears more promising for

the FAA: As the FAA emphasizes, that provision states that,

with exceptions not relevant here, making a test-refusal

determination is “a non-delegable duty of the actual

employer.” 49 C.F.R. § 40.355(i). But the FAA utterly ignores

the surrounding context. That regulation is explicitly directed

toward “service agents,” id. § 40.355, meaning a “person or

entity, other than an employee of the employer, who provides

services to employers and/or employees in connection with

DOT drug and alcohol testing requirements,” id. § 40.3. And

it prohibits such service agents from “mak[ing] a determination

that an employee has refused a drug or alcohol test,” before

11

stating in the next sentence that “[t]his is a non-delegable duty

of the actual employer.” Id. § 40.355(i). Read in context, this

provision establishes only that an employer cannot delegate its

responsibility for making the initial test-refusal determination

to service agents. It has no bearing on whether the FAA must

(or must not) review the employer’s determination.

B

Finding no answers in the statutes and regulations, we turn

to the FAA’s own internal guidance. One such guidance

document—the Drug and Alcohol Compliance and

Enforcement Surveillance Handbook—outlines procedures for

the FAA’s Drug Abatement Division “to follow when

assessing drug . . . testing programs” for “compliance with”

federal regulations. FAA, Order 9120.1E, Drug and Alcohol

Compliance and Enforcement Surveillance Handbook

(“Handbook”), at 1 (Apr. 1, 2023), https://perma.cc/E2HU-

UJQD. The Handbook directs that “all program personnel

must adhere to the procedures in this order,” “[u]nless

otherwise directed by the [Drug Abatement Division]

Director.” Id. Paul urges that the Handbook requires the FAA

to review an employer’s test-refusal determination. For the

reasons below, we endorse Paul’s reading.

Several features of the text support Paul’s position.

First, the Handbook explains that “[t]he purpose of” the

Drug Abatement Division’s investigations “is to determine

whether a finding of noncompliance exists and warrants the

need for compliance action.” Handbook at 53 ¶ 2. This

language appears to assign the Drug Abatement Division two

distinct responsibilities: (1) determining whether

noncompliance (e.g., test refusal) exists, and (2) evaluating

whether subsequent compliance action is warranted. The

language is therefore difficult to reconcile with the FAA’s

argument that the agency is tasked only with “determin[ing]

12

what enforcement action . . . is appropriate,” and not “with

making a determination that an employee refused a drug test.”

Respondent’s Brief 18–19.

Second, the Handbook repeatedly refers to employers’

test-refusal reports as “allegations.” See Handbook at 53–54

¶¶ 1, 3(a), 3(f); see also id. at 53 ¶ 2 (stating that Drug

Abatement Division investigations “pertain to alleged

deviations of the drug . . . testing regulations” (emphasis

added)). It would be quite strange to label an unreviewable

conclusion an “allegation.” That word connotes an unproven

fact and, unlike other words the manual might have used

(perhaps “determination” or “finding”), suggests further

evaluation will occur. See Allegation, Black’s Law Dictionary

(12th ed. 2024) (“a statement, not yet proved”).

Third, the Handbook states that “[i]nvestigations of an

employee may only result in legal enforcement action or no

action.” Handbook at 55 ¶ 5. “[N]o action,” when read in

conjunction with the two aforenoted textual clues, plausibly

reflects a review and rejection of an employer’s “allegation.”

Indeed, courts frequently describe agencies’ rejection of

grievances after investigation as “no action.” See, e.g.,

Egbert v. Boule, 596 U.S. 482, 490 (2022); Kennedy v. Comm’r

of Internal Revenue, 142 F.4th 769, 772 (D.C. Cir. 2025).

Admittedly, although Paul’s interpretation of the

Handbook (to which the FAA curiously offers no response) is

plausible, it rests on language that is far from unambiguous.

Like the statutes and regulations, the Handbook does not say

directly, one way or the other, whether the FAA will review an

employer’s test-refusal determination. But we need not decide

whether Paul’s is the best or only plausible interpretation of the

Handbook. Per the constitutional avoidance canon, if one

reading will raise “serious constitutional doubts” and another

“plausible” reading will not, we will adopt the latter. Clark v.

13

Martinez, 543 U.S. 371, 381 (2005); see also Weaver v. U.S.

Info. Agency, 87 F.3d 1429, 1438 (D.C. Cir. 1996) (applying

the avoidance canon to the State Department’s Foreign Affairs

Manual “in light of the constitutional difficulties entailed by

reading” it more broadly).

Here, the FAA’s litigation position—that it is not required

or even authorized to review employers’ test-refusal

determinations in these circumstances—raises serious

constitutional concerns under the private nondelegation

doctrine.

Generally, if the government delegates authority to a

private entity, the government must “retain[] the ultimate

authority to approve, disapprove, or modify” the private

entity’s “actions and decisions on delegated matters.” Hight v.

DHS, 135 F.4th 996, 1009 (D.C. Cir. 2025) (cleaned up); see

also FCC v. Consumers’ Rsch., 606 U.S. 656, 692 (2025)

(rejecting private nondelegation challenge because agency

“retain[ed] decision-making power”). We have accordingly

held that a Securities and Exchange Commission (SEC)

“regulatory scheme” likely offended the private nondelegation

doctrine by allowing the Financial Industry Regulatory

Authority (a private corporation) to, “without any SEC review

of its decision on the merits, effectively decide who can trade

securities under federal law.” Alpine Sec. Corp. v. FINRA, 121

F.4th 1314, 1328 (D.C. Cir. 2024), cert. denied, No. 24-904

(U.S. June 2, 2025). Likewise here, if 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.” Id.

The FAA attempts to distinguish Alpine Securities on the

ground that the regulatory scheme here “does not grant private

14

[entities] any authority to impose disciplinary sanctions.”

Respondent’s Supplemental Brief 11. On the FAA’s telling,

that is because “[i]t is the FAA, not the private air carriers, that

ultimately determines whether to take enforcement action

against a pilot’s airman certificates.” Id. at 12. But the FAA

neglects the other consequences that flow directly from an

employer’s test-refusal determination. As this case illustrates,

such a determination is reported to the Pilot Records Database

for consideration by future employers, see 14 C.F.R.

§ 111.220(a)(1)(ii), and immediately bars a pilot from

“perform[ing] a safety-sensitive duty” for any employer until

the pilot completes the return-to-duty process and secures a

new medical certificate, 14 C.F.R. § 120.113(d)(4). See also

49 C.F.R. § 40.285.

We emphasize that, in observing these “serious

constitutional doubts,” we do not resolve whether the FAA’s

position indeed violates the private nondelegation doctrine.

Martinez, 543 U.S. at 381. We hold only that Paul’s “plausible

interpretation” of the Handbook should be adopted in light of

the “constitutional difficulty” presented by the FAA’s

competing interpretation. Id. at 381, 384.

C

Given our interpretation of the Handbook, we partially

grant the petition for review on the basis that the FAA

arbitrarily and capriciously departed from its own internal

procedures.

We appreciate that the Handbook was not promulgated via

notice and comment and would almost surely not qualify as a

binding “legislative rule” under the various tests our caselaw

sets forth. Clarian Health W., LLC v. Hargan, 878 F.3d 346,

357 (D.C. Cir. 2017). Nevertheless, this court and others have

held that, in limited circumstances, “nonlegislative rules [may

have] binding effect against an agency.” Kristin E. Hickman &

15

Richard J. Pierce, Jr., Administrative Law Treatise § 4.3.2 (6th

ed. 2019) (hereinafter Hickman & Pierce) (collecting cases).

In particular, agency “[m]anuals or procedures may be binding

on an agency when they affect individuals’ rights.” Chiron

Corp. & PerSeptive Biosystems, Inc. v. NTSB, 198 F.3d 935,

944 (D.C. Cir. 1999) (collecting cases).

For example, in Morton v. Ruiz, 415 U.S. 199 (1974), the

Supreme Court held that the Bureau of Indian Affairs, in

denying a request for benefits, had unlawfully contravened a

requirement in an “internally circulated” agency manual. Id.

at 230, 235. The Court explained that “[b]efore the [agency]

may extinguish the entitlement of . . . otherwise eligible

beneficiaries, it must comply, at a minimum, with its own

internal procedures.” Id. at 235. Relying on Ruiz, this court

has held that a requirement contained only in a memorandum

of understanding between two agencies constrained the

agencies’ ability to revoke a conditionally-approved grant

application. Mass. Fair Share v. L. Enf’t Assistance Admin.,

758 F.2d 708, 711 (D.C. Cir. 1985). Other circuits have

similarly held that internal agency rules are enforceable against

agencies in limited circumstances. See Alcaraz v. INS, 384

F.3d 1150, 1162 (9th Cir. 2004); Newton v. Apfel, 209 F.3d

448, 459 (5th Cir. 2000); Montilla v. INS, 926 F.2d 162, 167

(2d Cir. 1991). These cases typically involve “serious

constitutional overtones.” Hickman & Pierce § 4.3.2.

That approach is warranted here. As explained, we

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. Because the FAA

concedes that it did not follow that requirement, we remand for

the agency to follow its own procedures and conduct the

necessary review. In doing so, we do not prescribe what

16

procedures the FAA must follow and instead leave that

question to the FAA in the first instance.

Paul’s petition for review also raises the subsequent issue

of whether Amerijet correctly determined that Paul refused a

mandatory drug test under federal law and, if not, what

remedies the FAA may provide. See Petitioner’s Brief 38–39.

But because the FAA never reviewed Amerijet’s test-refusal

determination, “[i]t would not be proper for us to resolve that

[issue] in the first instance.” City of Anaheim v. FERC, 558

F.3d 521, 525 (D.C. Cir. 2009). Rather, the FAA “must

address this issue in remand proceedings, in which it may

consider and reasonably explain” its position on the merits of

Amerijet’s test-refusal determination. Id.1

1

In closing, we note that the parties agreed that the FAA order

issued here was not appealable to the National Transportation Safety

Board under 49 U.S.C. § 44709(d). See Petitioner’s Brief 36;

Respondent’s Brief 16, 20. That provision states that “[a] person

adversely affected by an order of the Administrator under this section

may appeal the order to the National Transportation Safety Board.”

49 U.S.C. § 44709(d). And an order under “this section” is one

“amending, modifying, suspending, or revoking . . . any part of a

certificate issued under this chapter.” Id. § 44709(b)(1). It is true

that the FAA order we address here, by disclaiming any

responsibility for reviewing whether Paul refused a drug test, had no

impact on Paul’s certificate. But Amerijet’s test-refusal

determination, by automatically prohibiting Paul from performing

the safety-sensitive duties his medical certificate authorizes him to

perform until he obtains a new certificate, see 14 C.F.R.

§§ 61.53(a)(1), 120.113(d)(4), arguably did “amend[], modify[],

suspend[], or revok[e]” “part” of Paul’s certificate, 49 U.S.C.

§ 44709(b)(1). Once the FAA undertakes the review required by this

opinion and substantively addresses Amerijet’s test-refusal

determination, the FAA’s order will be responsible for any continued

effect on Paul’s certificate, and thus arguably would be appealable

17

IV

The petition for review is granted in part, and the case is

remanded to the FAA for proceedings not inconsistent with this

opinion.

So ordered.

to the Board. Although we note this issue for the parties’ benefit, we

do not resolve it here.

RANDOLPH, Senior Circuit Judge, concurring:

I agree that the “order” on judicial review is the letter the

FAA’s Drug Abatement Division sent to Paul on August 27,

2024. The letter, quoted on page 6 of the majority’s opinion,

informed Paul that “we” would not take enforcement action

against him, but, critically, it had consequences.

The FAA christens the Division’s letter as a “No Action”

letter. Given this description, one versed in federal

administrative law would naturally think this is a routine

exercise in prosecutorial discretion and thus immune from

judicial review. See Heckler v. Chaney, 470 U.S. 821, 831

(1985); Citizens for Resp. & Ethics in Washington v. FEC, 892

F. 3d 434, 439 (D.C. Cir. 2018). And yet the FAA does not

invoke that doctrine. Why? The answer is that “No Action” is

a misnomer, and the agency knows it. The FAA’s

announcement that it would not take enforcement action

against Paul was not entirely passive. It triggered another FAA

action adversely affecting him. This impact not only allows us

to review the FAA’s decision. It has striking implications for

Paul’s rights on remand which neither my colleagues nor the

parties have considered. I write separately to discuss them.

The Division’s letter to Paul was not only an “order,” as

my colleagues designate it, but more specifically, it was “an

order amending, modifying, suspending, or revoking – any part

of a certificate issued under this chapter [49 U.S.C. 44703].”

49 U.S.C. § 44709(b)(1). As such, Paul could have—and

should have—appealed the letter-order to the National

Transportation Safety Board. 49 U.S.C. § 44709(d). Such

“appeals” consist of “some kind of hearing” 1 before an

Administrative Law Judge, with no deference to the FAA’s

initial fact findings, and a potential review of the ALJ’s

1

See Henry J. Friendly, Some Kind of Hearing, 123 U. PA. L.

REV. 1267, 1267-68 (1975).

2

decision by NTSB. Id; see, e.g., Pham v. Nat’l Transportation

Safety Bd., 33 F.4th 576, 579-80 (D.C. Cir. 2022).

Paul’s counsel and counsel for the FAA apparently believe

that the Division’s August letter was not the type of “order”

just described, and that Paul was therefore not entitled to a

hearing before the NTSB. They are mistaken. The same fact

that takes the letter out of the realm of prosecutorial discretion

makes it appealable to the NTSB: The letter, by accepting his

employer’s refusal report, had an immediate impact on Paul’s

medical certificate.

FAA regulations establish that: “To be eligible for a first-

class airman medical certificate, and to remain eligible for a

first-class airman medical certificate, a person must meet the

requirements of this subpart.” 14 C.F.R. § 67.101. Another

regulation, 14 C.F.R. § 67.107, lists the mental health

requirements for eligibility including: “no substance abuse

within the preceding 2 years defined as . . . a refusal to submit

to a drug or alcohol test required by the U.S. Department of

Transportation or an agency of the U.S. Department of

Transportation,” 14 C.F.R. § 67.107(b)(2).

Focusing on the phrase “and to remain eligible,” Paul

complains that the FAA’s decision to accept his employer’s

decision automatically revoked his medical certificate. What he

does not appreciate is that on his view, the letter was an “order

. . . revoking . . . a certificate” and thus was appealable to the

NTSB pursuant to 49 U.S.C. § 44709(d). The FAA Division’s

letter itself states, consistent with the regulations quoted above,

that: “In accordance with 49 CFR § 40.285, an individual who

refuses to submit to any DOT test cannot perform any DOT

safety-sensitive duties for any employer until the individual has

completed the Substance Abuse Professional (SAP) evaluation,

referral, and education/treatment process, as required by 14

CFR Part 120 and 49 CFR Part 40, Subpart O.” J.A 66.

3

Put another way, the FAA’s letter-order, by accepting and

recognizing as final the employer’s determination that Paul

refused testing and thus rendering his certificate insufficient to

permit him to perform security-sensitive duties, modified his

medical certificate. Regardless of what label best fits, the fact

remains that this letter impacted all or part of his medical

certificate. 49 U.S.C. § 44709(b)(1), (d) (orders issued under

“this section” include orders affecting “any part of a certificate

issued under this chapter”).

The letter-order clearly qualified as an appealable order

pursuant to 49 U.S.C. § 44709(d). As such, I see no basis for

my colleagues’ construing the statutes, or the regulations, or

the FAA’s Handbook guidance, to avoid constitutional

doubts. 2 The constitutional private non-delegation doctrine

that so concerns my colleagues is not in play. 3 An appeal to

2

“[T]he rule of ‘construing’ to avoid constitutional doubts

should, in my view, be confined to cases where the doubt is

exceedingly real. Otherwise this rule, whether it be denominated one

of statutory interpretation or, more accurately, of constitutional

adjudication – still more accurately, of constitutional

nonadjudication – is likely to become one of evisceration and

tergiversation.” Henry J. Friendly, Mr. Justice Frankfurter and the

Reading of Statutes, in BENCHMARKS 211-12 (1967).

3

There appears to a bit of “tergiversation” (see note 2) going on

in the majority opinion, although, to its credit, the opinion

acknowledges as much. Maj. Op. 14. The FAA Handbook does not

say that the Division has the “responsibility” of “determining

whether noncompliance (e.g., test refusal) exists.” Maj. Op. 11. It

says instead that the Division is to determine whether there has been

a “finding” of “noncompliance.” Handbook p. 53 ¶ 2. That is

consistent with FAA’s contention that it is entirely up to the

employer to determine whether a pilot refused to be tested. So, this

portion of the Handbook is not—as the majority opinion states—

“therefore difficult to reconcile” with the FAA’s position that the

4

the NTSB, which has the power to “approve, disapprove, or

modify” the FAA’s order, provided Paul with an administrative

forum to litigate whether his private employer should have had

the final say about whether he refused to be tested. See Hight

v. DHS, 135 F.4th 996, 1009 (D.C. Cir. 2025); 49 U.S.C. §

44709(d)(3).

Despite my disagreement with the majority’s opinion, I do

not object to their remanding the case to the FAA. While I

would prefer that we instruct the parties that Paul could appeal

the letter-order without further ado, there can be no doubt that

Paul will be entitled—and moreover required, see e.g., Cornish

v. Blakey, 336 F.3d 749, 753 (8th Cir. 2003)—to appeal to the

NTSB should the FAA endorse his employer’s determination

that he refused to undergo testing.

employer has the final word. Maj. Op. 11. Actually, it is quite easy

to reconcile with the agency’s position.