Friedman v. Federal Aviation Administration

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 23, 2016 Decided November 15, 2016

No. 16-1007

ERIC FRIEDMAN,

PETITIONER

v.

FEDERAL AVIATION ADMINISTRATION,

RESPONDENT

On Petition for Review of an Order

of the Federal Aviation Administration

Z.W. Julius Chen argued the cause for Petitioner. With

him on the briefs were Gregory S. Walden and William

Mongan. Pratik A. Shah entered an appearance.

Amanda Kate Bruchs, Attorney, Federal Aviation

Administration, argued the cause and filed the brief for

Respondent. Michael S. Raab and Abby C. Wright, Attorneys,

U.S. Department of Justice, entered appearances.

Neal Kumar Katyal and Jaclyn L. DiLauro were on the

brief for amicus curiae The American Diabetes Association in

support of Petitioner.

Before: ROGERS, BROWN and PILLARD, Circuit Judges.

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Opinion for the Court filed by BROWN, Circuit Judge.

BROWN, Circuit Judge:

“I’ve never known an industry that can get into people’s

blood the way aviation does.”

- Robert Six, founder of Continental Airlines

Petitioner Eric Friedman (“Friedman”), a commercial

airline pilot, claims Respondent Federal Aviation

Administration (“the FAA” or “the Agency”) has behaved in

an arbitrary and capricious manner in assessing his request for

a commercial airline pilot’s license. Friedman has been

diagnosed with Insulin Treated Diabetes Mellitus (“ITDM”),

and although he holds a third class medical certificate

authorizing him to pilot non-commercial flights in the United

States, he seeks the first class certificate necessary to serve as

a commercial airline pilot. He argues the FAA has

impermissibly conditioned issuance of a first class license on

ninety days of continuous blood glucose monitoring, a costly

and invasive procedure not medically necessary for his care.

Since we believe the Agency’s unwavering position

constitutes final action, we remand to the FAA to provide

reasons for its denial.

I.

Congress has granted the FAA broad authority to regulate

those “practices, methods, and procedure[s] the Administrator

finds necessary for safety in air commerce and national

security.” 49 U.S.C. § 44701(a)(5). Accordingly, the FAA

issues airman certificates to pilots who are “qualified for, and

physically able to perform the duties related to, the position.”

Id. § 44703(a). The Agency has also established rules

requiring pilots to hold both a medical certificate and a pilot

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certificate. See, e.g., 14 C.F.R. § 61.3(a) & (c). The FAA

lists a number of conditions generally disqualifying for any

class of medical certification, among them a “medical history

or clinical diagnosis of diabetes mellitus that requires insulin

or any other hypoglycemic drug for control,” otherwise

known as ITDM. 14 C.F.R. §§ 67.113(a), 67.213(a),

67.313(a). While a diagnosis of ITDM generally excludes a

pilot from any medical certificate issued by the FAA pursuant

to 49 U.S.C. § 44703(a), the FAA has the discretionary

authority to grant exceptions to the medical regulations

contained in 14 C.F.R. § 67. See 49 U.S.C. § 44701(f). An

Authorization for Special Issuance of a Medical Certificate

may be provided to an applicant with a disqualifying

condition “if the person shows to the satisfaction of the

Federal Air Surgeon that the duties authorized by the class of

medical certificate applied for can be performed without

endangering public safety during the period in which the

Authorization would be in force.” 14 C.F.R. § 67.401(a).

Regulations require the Federal Air Surgeon (“FAS”) to

make his determination using standards published for each

condition as set forth in the FAA’s Guide to Aviation Medical

Examiners (“AME Guide”). See id. § 67.407(a). The process

includes a medical examination performed by a member of

the community of Aviation Medical Examiners (“AME”s),

see id. § 67.401(a), and it may require pilots to provide

additional medical information to the FAA where necessary,

see id. § 67.413(a). Specifically, the FAS must “consider[]

the need to protect the safety of persons and property in other

aircraft and on the ground.” Id. § 67.401(e).

For much of its history the FAA enforced a blanket ban

on the issuance of medical certificates to individuals with

ITDM, but in 1996 it reversed course and established criteria

for pilots with ITDM to receive a third class medical

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certificate (but not a first class certificate). Since the policy

change was adopted, there has been no medically related

accident, incident, or inflight incapacitation, from any cause,

of any such insulin treated special issuance pilot. In light of

the strong record of third class pilots with ITDM, and in

reliance on the expert analysis provided by an Expert Panel on

Pilots with Insulin Treated Diabetes (“Expert Panel”)—

convened by the American Diabetes Association (“ADA”) at

the FAA’s request—the FAA amended its AME Guide to

broaden the third class ITDM protocol to all classes of

medical certificates on April 21, 2015.

On April 27, 2015, Friedman submitted a completed

application for a first class license to the FAA. A few days

later, on April 30, 2015, the FAA requested supplemental

information, including “any and all information that you may

have that is relevant to your condition, which may include . . .

(if applicable) continuous glucose monitor readings.” JA 73.

The next month, Friedman inquired as to the FAA’s method

for evaluating glucose testing results and stated “I do not use

a continuous glucose monitor.” JA 31–32. Continuous

Glucose Monitoring (“CGM”), according to the ADA, is an

invasive procedure that “uses a sensor inserted under the skin

to check glucose levels in tissue fluid. A transmitter sends

information about glucose levels via radio waves from the

sensor to a wireless monitor.” ADA Amicus Br. 14. This

technique provides a “historical record of glucose levels over

time” and can “provid[e] helpful information about historic

trends in one’s blood sugar levels and how those levels have

been affected by diet and exercise.” Id. However, CGM data

is not as accurate as other blood glucose measures like

fingersticks. Id. 15–16. Moreover, CGM is costly and is not

covered by insurance unless medically necessary.

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On June 17, 2015, just two days after Friedman wrote to

the FAA to note the Agency had requested information

beyond its own published evaluation protocol, the FAA

revised its AME Guide. The newly-minted version provided

“[f]irst and second class applicants will be evaluated on a

case-by-case basis by the Federal Air Surgeon’s Office” and

omitted any protocol for evaluation. JA 469. Later, on

October 6, 2015, the FAA again requested Friedman provide

“any and all information that you may have that is relevant to

your condition, which may include . . . [a] report for

continuous glucose monitoring (CGM) conducted for a

minimum of 90 days.” JA 71. The letter informed Friedman

his application would be denied if he did not indicate he

planned to comply with the request within sixty days. JA 72.

In response, Friedman again advised the FAA he did not

possess any CGM data. This time, however, Friedman also

presented letters from his physicians explaining CGM was not

medically necessary in his case. The Expert Panel even

submitted a letter in support of Friedman’s application to

explain, “CGM systems have value, [but] they are neither

necessary nor appropriate for making decisions on medical

certification of pilots with diabetes” and are less accurate than

the blood glucose data Friedman had already submitted. JA

65–66. On November 13, 2015, the FAA wrote to Friedman

yet again to request CGM data and again cautioned that

failure to respond within thirty days with an agreement to

supply CGM data would result in denial of his application.

Thereafter, on December 1, 2015, the FAA wrote

Friedman to explain it was “unable to proceed with further

determination of [his] potential eligibility for special issuance

of a first-class airman medical certificate until [the Agency]

receive[d] the [CGM] information previously requested . . . .”

JA 53. On December 18, 2015, the FAS sent an additional

letter informing Friedman his request for a first class

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certification “remains under consideration” and granting him

a third class certificate—the certificate level he already held.

JA 47–48. 1 Specifically, the letter noted the FAS had

reviewed the information submitted in Friedman’s April 27,

2015 application and granted the third class license in

response. Ibid. It further advised Friedman “should not

undergo a new FAA medical examination until advised to do

so by the Aerospace Medicine Certification Division

(AMCD).” JA 48.

II.

The threshold question in this case is whether the FAA

has, either actually or impliedly, issued a final order eligible

for judicial review. The Administrative Procedure Act

(“APA”) authorizes judicial review of “final agency action for

which there is no other adequate remedy in a court,” and

“[a]gency action made reviewable by statute.” 5 U.S.C.

§ 704. And, while Section 46110 of the Federal Aviation Act

authorizes judicial review of an “order” and omits any explicit

finality requirement, this Circuit has “incorporated generally

applicable finality principles into the analysis of what counts

as an ‘order’ under section 46110.” Flytenow, Inc. v. FAA,

808 F.3d 882, 888–89 (D.C. Cir. 2015).

Here, the FAA contends it did not issue a final order

regarding Friedman’s first class medical certificate

1

On November 12, 2015, Friedman had applied to the FAA for a

renewal of his third class medical certificate due to expire on

December 31, 2015. While Friedman alleges the FAA altered his

first class application in granting his request for a third class

certificate, he has presented no evidence suggesting this was done

in bad faith. Without evidence to the contrary, “[w]e must presume

an agency acts in good faith.” Comcast Corp. v. FCC, 526 F.3d

763, 769 n.2 (D.C. Cir. 2008).

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application; it purportedly ruled solely on his independent

request for a third class medical certificate and specifically

indicated the first class certificate remained under review.

See JA 47–48, 53. Accordingly, the Court initially considers

whether the Agency’s admitted actions nonetheless meet the

two-part test of finality:

First, the action must mark the consummation of the

agency’s decisionmaking process—it must not be of

a merely tentative or interlocutory nature. And

second, the action must be one by which rights or

obligations have been determined, or from which

legal consequences will flow.

Bennett v. Spear, 520 U.S. 154, 177–78 (1997). Case law

interpreting this standard is “hardly crisp,” and it “lacks many

self-implementing, bright-line rules, given the pragmatic and

flexible nature of the inquiry as a whole.” Rhea Lana, Inc. v.

Dep’t of Labor, 824 F.3d 1023, 1027 (D.C. Cir. 2016). As a

general principle, therefore, “the term ‘order’ in [Section

46110] should be read expansively.” City of Dania Beach v.

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

The specific facts presented here establish a constructive

denial of Friedman’s application for a first class certificate.

In its October 6, 2015 letter, the FAA first expressly

required CGM data from Friedman: the Agency warned it

would “deny [his] request for upgrade” to a first class

certificate if he did not “reply within 60 days . . . [to] advise

[the FAA] of [his] plans” to provide the requested data. JA

72; see 14 C.F.R. § 67.413(a) & (b) (noting an applicant

“must” provide requested supplemental information and

authorizing the FAA to “deny the application for a medical

certificate” for those who fail to comply). Friedman refused.

Thereafter, on November 13, 2015—about one month after

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the FAA’s countdown clock started—the FAA repeated its

demand, and it requested a “reply within 30 days.” JA 55.

The Agency was clearly counting down towards a denial on

December 13, 2015, and yet Friedman continued to explain

that he did not possess or intend to procure the requested

CGM data. Then, in its December 1, 2015 letter

acknowledging communication from Friedman’s attorney, the

FAA ignored the ticking clock. Instead, it merely noted, “We

are unable to proceed with further determination of your

potential eligibility for special issuance of a first-class airman

medical certificate until we receive the information previously

requested in our letter of November 13, 2015. We look

forward to reviewing that information when you are able to

provide it.” JA 53. Thereafter, in its only communication

authored after the thirty-day deadline had passed, the FAA

acknowledged Friedman’s “request for upgrade[d] first-class

special issuance medical certification remains under

consideration,” but it failed to offer an extension of the

previously-set deadline or otherwise establish any timetable

for denial of Friedman’s application for failure to comply. JA

47 (December 18, 2015 letter).

Here, the FAA has issued no formal decision on

Friedman’s application for a first class certificate. Despite his

consistent refusal to provide the requested CGM data, the

Agency has placed Friedman in a holding pattern—preventing

him from obtaining any explicitly final determination on his

application and thwarting the Court’s interest in reviewing

those agency actions that, in practical effect if not formal

acknowledgement, constitute “the consummation of the

agency’s decisionmaking process” and determine “rights or

obligations.” Bennett, 520 U.S. at 177–78; see also 5 U.S.C.

§ 551(13) (defining agency “action” to include a “failure to

act”). Indeed, this Court has repeatedly noted the applicable

test is not whether there are further administrative

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proceedings available, but rather “whether the impact of the

order is sufficiently ‘final’ to warrant review in the context of

the particular case.” Envtl. Def. Fund, Inc. v. Ruckelshaus,

439 F.2d 584, 591 (D.C. Cir. 1971) (assessing the Federal

Insecticide, Fungicide, and Rodenticide Act’s provision for

judicial review “[i]n a case of actual controversy as to the

validity of any order” of the Secretary of Agriculture as

articulated in 7 U.S.C. § 135b(d) (1970)); Ciba-Geigy Corp.

v. EPA, 801 F.2d 430, 435–37 (D.C. Cir. 1986) (finding final

agency action where a letter from the Environmental

Protection Agency confirmed its policy with respect to new

labeling changes and noting “[o]nce the agency publicly

articulates an unequivocal position . . . and expects regulated

entities to alter their primary conduct to conform to that

position, the agency has voluntarily relinquished the benefit

of postponed judicial review”); Envtl. Def. Fund, Inc. v.

Hardin, 428 F.2d 1093, 1098–99 (D.C. Cir. 1970).

Where an agency has clearly communicated it will not

reach a determination on a petitioner’s submission due to

petitioner’s recalcitrance but simultaneously refuses to deny

the petitioner’s submission on those grounds, it has engaged

in final agency action subject to this Court’s review. In

Securitypoint Holdings, Inc. v. Transportation Security

Administration, 769 F.3d 1184 (D.C. Cir. 2014), for example,

we reviewed as final agency action a letter from the

Transportation Security Agency (“TSA”) Chief Counsel

refusing to lift a contracting requirement newly imposed on

TSA airport security checkpoint contractors. SecurityPoint

sought to obtain the government contract, but it objected to

and refused to sign TSA’s new Memorandum of

Understanding (“MOU”) promising to indemnify TSA for

intellectual property claims. Id. at 1186. The company wrote

to the TSA’s Chief Counsel to urge the agency to abandon the

MOU, and TSA denied the request by letter. The Court later

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held that letter represented the consummation of the agency’s

“decisionmaking process regarding SecurityPoint’s contention

that it should abandon the challenged alterations of the MOU

language.” Id. at 1187. Here, Friedman refuses to comply

with the agency requirement he seeks to challenge, and the

Agency has made clear it will not act on his application until

he submits. Friedman, for his part, repeatedly asserts that he

provided all that is required under the April 2015 AME

Guide, and no FAA “regulation or policy require[s] the use of

[CGM] for either initial certification or inflight monitoring.”

JA 41–43. Accordingly, as with the TSA Chief Counsel’s

letter in SecurityPoint, the FAA’s communications here

represent the agency’s rejection of Friedman’s argument, its

final decision to require CGM data, and its confirmation that

it is not now opening the third-class applicants’ case-by-case

exemption process to first-class applicants.

The government, apparently ignoring the power of the

Court to ensure justice in an area of law governed by a

“pragmatic and flexible” approach, Rhea Lana, 824 F.3d at

1027, is content to distinguish the cases cited by Friedman on

their specific facts. Air One Helicopters, Inc. v. FAA, 86 F.3d

880 (9th Cir. 1996), the Agency contends, applies only to a

scenario where an agency and a private party find themselves

at an impasse that neither is empowered to clear. Similarly,

the FAA reads Air Line Pilots Ass’n International v. Civil

Aeronautics Board, 750 F.2d 81 (D.C. Cir. 1984), to apply

only to situations where the private party has done everything

in his power to comply with an agency’s request but the

agency, nonetheless, excessively delays determination of his

claims. Finally, the FAA asserts the doctrine of

Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093,

1099 (D.C. Cir. 1970), reviewing “administrative inaction

[that] has precisely the same impact on the rights of the

parties as denial of relief,” does not apply since Friedman is

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free to trigger a new six-month license validity period at his

option. The Agency has missed the forest for the trees.

Nothing in our case law suggests the law of final agency

action is confined to the specific facts of prior circuit cases.

To the contrary, the doctrine asks whether a particular

agency action represents the “consummation of [its]

decisionmaking process” and determines “rights or

obligations.” Bennett, 520 U.S. at 177–78. The standard is

met here. As described above, the FAA has set deadlines,

counted down towards them, and then allowed them to pass

without discussion; its actions suggest the FAA has made up

its mind, yet it seeks to avoid judicial review by holding out a

vague prospect of reconsideration. And, as a result of the

FAA’s conduct, Friedman has been unable to resume his job

as a commercial airline pilot at American Airlines, a job that

requires a first class medical certificate. See Safe Extensions,

Inc. v. FAA, 509 F.3d 593, 598 (D.C. Cir. 2007) (finding

adequate legal consequences where an agency’s new test for

runway lighting “effectively prohibits airports from buying

light bases that fail the new . . . test, and . . . bars

manufacturers like Safe Extensions from selling their

products to airports”).

III.

Since we hold Friedman’s case is subject to judicial

review, we now proceed to the merits.

The FAA argues Friedman’s claims are insulated from

judicial scrutiny as “there is no law to apply” to the FAA’s

determination. Drake v. FAA, 291 F.3d 59, 70 (D.C. Cir.

2002); see also Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402, 410 (1971). But the jurisprudence of

unfettered discretion is inapplicable here. Several regulations

provide the criteria upon which the FAS relies to determine

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whether Friedman may be granted a first-class certificate.

Specifically, under 14 C.F.R. § 67.401(a), a special issuance

may be granted “if the person shows to the satisfaction of the

Federal Air Surgeon that the duties authorized by the class of

medical certificate applied for can be performed without

endangering public safety during the period in which the

Authorization would be in force.” Later in that same section,

the regulation charges the FAS with a duty to “consider[] the

need to protect the safety of persons and property in other

aircraft and on the ground.” Id. § 67.401(e). While these

directives are clearly open to interpretation, they nonetheless

provide a judicially manageable standard. See, e.g., Safe

Extensions, 509 F.3d at 601 (finding a judicially manageable

standard in the phrase “necessary for safety” under 49 U.S.C.

§ 44701); Union of Concerned Scientists v. U.S. Nuclear

Regulatory Comm’n, 824 F.2d 108, 109, 113 (D.C. Cir. 1987)

(reviewing whether regulations “provide[d] adequate

protection to the health and safety of the public” under 42

U.S.C. § 2232(a)).

Arguing in the alternative, the FAA maintains

Friedman’s license application was denied for refusal to

comply with the Agency’s request for CGM data. To justify

this decision, the FAA points to the Expert Panel’s letter in

support of Friedman’s application, which acknowledged

“CGM systems have value” and are “most useful in

identifying trends and the direction and speed at which a

person’s blood sugar may be changing.” JA 65–66. While

the Expert Panel concluded treatment decisions for

individuals with ITDM should not be based on CGM data

alone—as the devices may be inaccurate and are, in any

event, less accurate than fingerstick blood test results—it also

noted CGM provides constant glucose monitoring results

capable of detecting spikes and dips in interstitial glucose

(indicative of actual blood glucose) that might have gone

13

undetected via intermittent fingerstick measurements. Ibid;

see also ADA Amicus Br. 13–14. Nonetheless, the FAA

overstates the usefulness of this concession, as the Expert

Panel does not ultimately recommend employing CGM data

“for making decisions on medical certification of pilots with

diabetes.” JA 66. It is not for us to say in the first instance

whether or how CGM data might be of future use to the FAA

in evaluating license applications. But it is clear the FAA has

not borne its burden of justification. The FAA’s letters

communicating its demand for CGM data to Friedman,

despite his many requests for clarification, fail to articulate

any rationale for consideration of the additional information.

See Safe Extensions, 509 F.3d at 606 (finding no “substantial

evidence” to support the FAA’s rationale where it offered “no

evidence whatsoever” on the relevant issue).

Notably, the Agency does not identify any FAA

statements that could be construed as explaining its denial of

Friedman’s application, the determination Friedman calls

upon this Court to review. Of course, there is a certain irony

inherent in requiring an agency to identify reasons for a denial

it never thought it issued. But “recent [D.C. Circuit] cases

regarding whether agency actions qualify as orders never

consider the adequacy of the record, instead asking only

whether the action was final.” Id. at 599 (citing Dania Beach,

485 F.3d at 1187; Vill. of Bensenville v. FAA, 457 F.3d 52, 68

(D.C. Cir. 2006)). As the Supreme Court explained,

The focal point for judicial review should be

the administrative record already in existence,

not some new record made initially in the

reviewing court. The task of the reviewing

court is to apply the appropriate APA standard

of review to the agency decision based on the

record the agency presents to the reviewing

14

court. If the record before the agency does not

support the agency action, if the agency has

not considered all relevant factors, or if the

reviewing court simply cannot evaluate the

challenged agency action on the basis of the

record before it, the proper course, except in

rare circumstances, is to remand to the agency

for additional investigation or explanation.

Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743–44

(1985). Specifically, “the court can undertake review as

though the agency had denied the requested relief and can

order an agency to either act or provide a reasoned

explanation for its failure to act.” Sierra Club v. Thomas, 828

F.2d 783, 793 (D.C. Cir. 1987).

In light of the complete absence of a relevant

administrative record to review—and the inherent inequity in

passing judgment on this matter without offering the Agency

a chance to explain its reasoning—any analysis of the FAA’s

denial would be imprudent. Accordingly, we remand this

matter to the FAA to offer reasons for its denial of Friedman’s

application for a first class medical certificate. Friedman’s

additional allegations must await proceedings on remand.

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***

The FAA has placed Friedman in administrative limbo—

he has neither a first class medical certificate nor an official

order denying him the certificate—and the only way out

requires capitulation to the very requirement he seeks to

challenge. The Agency cannot manipulate its own processes,

threatening denial but then refusing to deny or otherwise take

definitive action on Friedman’s application, in an effort to

thwart judicial review.

So ordered.