Drug testing is the bane of pilots and mechanics. According to 14 C.F.R. §120.107, “Each employer shall test each employee who performs a safety-sensitive function for evidence of Marijuana, Cocaine, Opiates, Phencyclidine (PCP), and Amphetamines during each test required by §120.109.” Drug testing of airmen is intrusive as the airman confronts a Sample Collector who directs the airman to urinate in a bottle. While a nuisance to all, an improperly administered drug test can be a career terminating event. For that reason, it is worthwhile considering the rules that apply to drug testing.

THE RUDIMENTARY TRAINING OF DRUG TESTING COLLECTORS

The training requirements for a Department of Transportation Sample Collector are fairly rudimentary. The Sample Collector receives some basic training and then undergoes five consecutive error-free mock collections.Among the five mock collection scenarios, a Collection Sample Trainee must experience and successfully pass, two involve uneventful collections1, one involves an insufficient quantity of urine, one involves an out-of-range temperature scenario, and one involves a refusal of the employee to sign the Custody Collection Form (CCF).2 In any case, the ability of a high school graduate to properly comply with the procedures and protocols for drug testing may determine your fate and your career as an airman.

THE NEED TO FOLLOW PROCEDURES

When any airman is asked to undergo drug testing, he has a right to request the Sample Collector to provide his or her identification.3 The drug Sample Collector is required to explain the collection procedures to the airman including showing the airman the instructions on the back of the Custody Control Form.4 Once the airman enters the collection site, the testing process should commence without undue delay.5 The Sample Collector must instruct the airman to wash and dry his hands before the testing commences.6 The Sample Collector must tell the airman that the airman cannot wash his hands again until after delivering the specimen.7

According to the regulations, either the airman or the Sample Collector or both of them must unwrap or break the seal of the collection container; and the seal of the specimen bottle should be unbroken at that time.8 The Sample Collector is required to tell the airman that he must provide a 45mL sample of urine, not to flush the toilet, and to return the specimen to the Sample Collector as soon as the voiding process has been completed.9 Generally, the Sample Collector is not allowed to go into the room with the employee.10 The Sample Collector may set a reasonable time for the voiding.11

FAILURE OF THE SAMPLE COLLECTOR TO FOLLOW PROTOCOLS CAN RESULT IN A FINDING THAT HE FAA FAILED TO CARRY ITS BURDEN OF PROOF

Administrator Todd S. Peterson, Applicant,12 is a case that demonstrates the failure of the drug Sample Collector to follow proper protocols and procedures can result in an adverse finding against the Administrator. Petersen, a mechanic at Northern Air Cargo, was called in for a random drug test at 5:30 in the afternoon.13 Along with Petersen, mechanics Drew and Simmons were called in for testing.14 The Sample Collector, Mr. Jordan, had accomplished between 20 or 25 tests earlier in the day.15 Jordan had no specific memory of the events of September 22, 1994.16 Jordan could only testify about his habit and practice in administering drug tests.17 According to Jordan the procedures he followed were:

  1. The drug testing kit would be in a sealed condition,18
  2. The kits remained sealed until an airman selected a kit for testing,19
  3. Upon selection, the kit would be opened,20
  4. The cup and two bottles would then be placed on the collection table with the lid21
  5. The only gave verbal instructions rather than written instructions,22
  6. He orally advised the donors to wash their hands,23
  7. He informed the donors they could use the cup or the two bottles (splitting the samples),24
  8. If he received a sample in a cup, he would split the sample by filling the two bottles,25
  9. He put the temperature tapes on the bottles,26
  10. He sealed the bottles and put a piece of tape on the top,27
  11. He completed the CCF,28 and
  12. He put everything in a plastic bag and sent it to Med Express.29 Jordan further testified that before the samples were collected, he cleaned down the area, wiped off the sink, taped off the water supply, and he taped off the soap dispensers.30

During the course of the day, Petersen had been handling aircraft parts that had been inspected.31 Petersen drove with Mr. Drews to the testing facility and arrived about ten minutes after being notified.32

Petersen testified:

  1. Two bottles were sitting on the table;33
  2. They were not in a sealed container;34
  3. There was no kit to open or to choose from;35
  4. There were no written instructions;36
  5. He was not told to use the cup or bottles;37
  6. He was not told he could select a kit;38
  7. He was not advised to wash his hands;39
  8. There was no red tape in the collection area;40 and
  9. He used the bottles and presented the specimens to Jordan.

The testimony of the two other mechanics, Mr. Simmons and Mr. Drews, corroborated the testimony of Mr. Petersen about the departure from proper drug testing procedures.42 Two weeks before the random drug tests, Petersen had been tested for drugs and was negative for cocaine.  Petersen’s test results indicated the sample had been contaminated and he was released from employment.43 Petersen had two drug tests subsequent to the random test at work, and both of the tests were negative for drugs.44

The FAA brought an emergency order of revocation on the theory Petersen refused to submit to a drug test by knowingly contaminating the test.45 According to Dr. Kuntz, the toxicologist, the Gas Chromatography (GCMS) test was positive for cocaine, but additional testing required to validate the results could not be accomplished because of the contamination.46

Judge Geraghty, in rendering his initial decision, reasoned that the burden of proof was on the Administrator to prove Petersen knowingly introduced the adulterant; and the burden was not on Petersen to explain how the contaminant (surfactant) got into the urine specimen.47 Judge Geraghty noted that there was evidence the tops were off the collection bottles when the airman entered the testing facility, and he noted:

How the contaminant got into the particular samples given by the respondent is not something I need to resolve here. The question is whether or not this test was performed in a way which would preclude a reasonable probability that the adulterant could have been introduced in a manner other than by the respondent. The burden of proof on that, I believe, rests with the government. Again, it’s not up to the respondent to explain how it got there.  He says that he did not know.

And that, I think, is significant.

In paragraph 4 of the complaint it alleges that the respondent knew that the sample had been adulterated. The contravening evidence from the respondent and Mr. Simmons and Mr. Drews was that the collection process was done in a manner which left the collection process susceptible to the introduction of a contaminant by means other than the respondent. The burden is on the complainant to show that the respondent knew it had been adulterated.

***

The circumstances here and the evidence lead me to feel that the more credible evidence rests on the side of the respondent and that I would find on that basis that the testing procedure, collection procedure, was done by Mr. Jordan on September 22nd at the end of a busy day at about 5:00 may have been speeded up and done in the manner as testified to by the respondent and the two witnesses called by the respondent and, therefore, the respondent has raised sufficient doubt as to preclude a finding on a preponderance of the evidence that he knew that an adulterant had been placed in the sample or that he in fact placed the adulterant there.

There is sufficient doubt raised by the evidence in front of me that the manner in which the samples were collected on that particular day left the collection process open to the reasonable inference that a soap adulterant could be introduced into the bottles in a manner other than a knowing placing there by respondent.

The Complainant (FAA) simply has not sustained his burden of proof by a preponderance of the reliable evidence that the respondent knew the urine sample was adulterated by the placing of a surfactant into that sample.

I therefore find that the complaint, the Emergency Order of Revocation herein, must be set aside and vacated on the finding that the Complainant has no sustained his burden of proof herein.48

After Petersen prevailed and defeated the Administrator’s emergency order of revocation, he filed a claim for attorney’s fees and expenses under the Equal Access to Justice Act.49 The irregularities in the drug testing process were called to the attention of the Administrator by written statements of Petersen and the two other mechanics, but the FAA chose to go forward with the case relying upon the non-specific testimony of Mr.Jordan on the possibility that Petersen and the other two mechanics were lying.50 Judge Geraghty found that the FAA, in ignoring the statements of Petersen and the two other mechanics, failed to thoroughly and properly investigate the case and proceeded with the prosecution based upon a case that was weak or tenuous.51 Judge Geraghty then awarded Petersen attorney’s fees of $6,859.91 and costs of $60.00.52

The FAA appealed the award of attorney’s fees in favor of Petersen in Todd S. Petersen v. David R. Hinson, Administrator, Federal Aviation Administration.53 The NTSB affirmed the award of attorney’s fees in favor of Petersen with the proviso that fees incurred by Petersen before the issuance of the complaint should be disregarded.54 In rendering its decision the NTSB made this striking observation:

While we might not have the same view had this issue arisen in another context (and to comment generally would be merely dicta), we review government imposition of drug testing programs and government use of drug testing results to carry a special, heightened, obligation. That obligation is not fulfilled where contradictory or controversial testimony is summarily and unilaterally discounted as unreliable. This reaction is of special concern when applicant had submitted to the FAA results of a drug test analysis taken two weeks earlier indicating negative results…

Accordingly, in cases involving drug tests and the implications to certificate holders of positive or contaminated test results, it is our view that, to be substantially justified in proceeding, the Administrator must investigate all reasonable avenues offered by a respondent, and that the written statements of two co-workers, notably in view of applicant’s prior negative test, were such reasonable avenues for which inquiry should have been made.55

In light of the Board’s pronouncement in Peterson, the airman will be well-advised to make himself conversant with the procedures to be followed in a drug testing setting and note any departures from drug testing protocols in the administration of the test by the Sample Collector.

WHEN IS A NON-REFUSAL A REFUSAL – THE SHY BLADDER RULE

A number of definitions are incorporated into the drug testing rules. Among them is the definition of a “refusal” which is as follows:

Refusal to submit to a drug test means an employee engages in conduct including, but not limited to that described in 49 C.F.R. §40.191.”56

The definition of refusal incorporates 49 C.F.R. §40.191 which says that an airman has refused to submit to a drug test when he “fail(s) to provide a sufficient amount of urine when directed, and it has been determined, through a required medical evaluation, that there was no adequate medical explanation for the failure. (See §40.193(d)(2)).”57 The regulations require the airman provide 45mL of urine.58 If the airman fails to provide 45mL of urine, he has thereby “engaged in conduct” that constitutes a “refusal” unless there is an adequate medical explanation for the failure. To be clear, an airman who cannot provide a 45mL sample of urine within three hours has refused the drug test unless there is an adequate medical explanation for the failure. A refusal to submit to the drug test can result in revocation of the airman’s certificate.

The Sample Collector is instructed by the regulation to discard any sample that is less than 45mL unless the specimen is out of the temperature range or evidences signs of tampering.59 In other words, a sample that could prove the airman is not under the influence of drugs must be destroyed in order that the FAA can bring charges claiming that he refused to submit to a drug test because he could not urinate on command. However, if the sample is inadequate in volume, it is still preserved if it may evidence deceptive conduct on the part of the airman. This policy and procedure is calculated to disarm the airman in the event of a challenge to drug testing based upon the shy bladder rule and deprive him of necessary exculpatory evidence which suggests a significant due process challenge to the regulations under the Fifth Amendment to the United States Constitution. Why would the FAA direct a Sample Collector to discard a sample that may prove the airman had no drugs in his system? The intent of the regulation is clear, to deprive airmen of the ability to defend themselves in shy bladder cases if they cannot provide a 45mL specimen of urine within three hours.

In order to appreciate the intrusive nature of drug testing, the airman must appreciate that in the event the urine specimen he provides is outside of the acceptable range, then the Sample Collector is required to engage in direct observation, that is, actually observe the airman urinate.60 Then, the original specimen that was out of temperature range and the new specimen are sent to the laboratory for analysis.61 In those situations where the initial specimen is out of temperature range, even though the specimen is of insufficient volume (less than 45mL), the FAA requires that the original specimen be maintained so that the original out of temperature range and the subsequent specimen can be dispatched to the laboratory together.62  The fact that a sample that was out of temperature and is inadequate in volume is dispatched to the laboratory while a benign sample with inadequate volume is discarded is further proof of the FAA’s intent to deprive the airmen of exculpatory evidence to prove they did not have drugs in their system, simply because they could not provide a 45mL sample of urine.

Counsel called upon to defend an airman in a claim brought by the FAA that the airman refused to submit to a drug test simply because he could not provide an adequate sample in terms of volume must consider a number of regulations together, including 49 C.F.R. §40.191 (refusal to take a DOT drug test); 49 C.F.R. §40.193 (what happens when an employee does not provide a sufficient amount of urine?); and 49 C.F.R. §120.7(o) (definition of refusal to submit to a drug test including “engaging in conduct” under 49 C.F.R. §40.191). Generally speaking, as one reviews these regulations, you come to the realization that unless the airman had a documented medical history in the past of not being able to urinate or having a medical condition making urination problematic, then the FAA is by regulation going to dictate to the medical review officer and to the referral physician that they render a finding that the airman refused to submit to a DOT drug test.  For example, according to 49 C.F.R. §40.191(a), you as an airman have refused to take a drug test if you:

Fail to provide a sufficient amount of urine when directed, and it has been determined, through a required medical evaluation, that there was no adequate medical explanation for the failure (see §40.193(d)(2).63

The protocols to be followed in the event of a shy bladder are set forth in 49 C.F.R.

§40.193. Not surprisingly, §40.193(a) like §40.65(a), requires the airman to provide a sample of 45mL of urine. Similarly, §40.193(b) requires that the Sample Collector discard a specimen of less than 45mL “except where the insufficient specimen was out of temperature range or showed evidence of adulteration or tampering…”64 The language in §40.193(b)(1) requiring the Sample Collector to discard a specimen of insufficient quantity unless it is incriminating is essentially the same language that appears in §40.65(a)(2).  So, the FAA has made it clear time and time again that if the sample might exonerate the pilot it will be destroyed. Conversely, if the sample will or may incriminate the pilot, the evidence is to be preserved. This is not an innocent or unforeseen mistake on the part of the FAA in promulgating its drug testing rules.

If the employee provides a sample that is less than 45mL that is not out of temperature range and that does not evidence adulteration or tampering the specimen is destroyed by the Sample Collector who is then told to tell the airman to consume up to 40 ounces of fluid over a period of three hours.65  49 C.F.R. §40.193(b)(3) provides:

If the employee refuses to make the attempt to provide a new urine specimen or leaves the collection site before the collection process is complete, you (the Sample Collector) must discontinue the collection, note the fact on the “Remarks Line of the CCF (Step 2), and immediately notify the DER (Designated Employee Representative).  This is a refusal to test.

Next, 49 C.F.R. §40.193(b)(4) provides:

If the employee has not provided a sufficient specimen within three hours of the first unsuccessful attempt to provide the specimen, you must discontinue the collection, note the “Remarks” line of the CCF (Step 2), and immediately notify the DER.

Then, 49 C.F.R. §40.193(b)(5) directs the Sample Collector to: “Send Copy 2 of the CCF to the MRO and Copy 4 to the DER. You must send or fax these copies to the MRO and DER within 24 hours or the next business day.”

An airman who has provided a sample of less than 45mL of urine that was discarded and over a three hour period was unsuccessful in providing a 45mL sample will then be directed by the MRO of the facility within five days of the evaluation to report to “a licensed physician, acceptable to the MRO, who has expertise in the medical issues raised by the employee’s failure to provide a sufficient specimen. (The MRO may perform this evaluation if the MRO has appropriate expertise.)”66

The MRO in referring the airman to the referral physician merely relates to the referral physician that the airman was unable to provide a sufficient amount of urine, advises the referral physician of the consequences of the appropriate DOT agency regulation for refusing the required drug test, and the referral physician must agree to follow the requirements of Paragraph (d) through (g) of 49 C.F.R. §40.193.67

There is nothing in the regulation that calls upon the MRO to refer the airman to a urologist, that is, someone who has the requisite training and expertise to evaluate why an airman could not urinate or could not provide a 45mL sample of urine. In all likelihood, the MRO will refer the airman to a general practitioner physician.  The general practitioner physician, in taking the referral from the MRO has only two options.  The first option is that the referral physician can make a determination that a medical condition “with a high degree of probability could have precluded the employee from providing a sufficient amount of urine.”68 If the referral physician finds that a medical condition prevented the provision of the requisite volume of urine, then Step 6 on the CCF is checked, as “Test Cancelled,” and the MRO signs and dates the CCF.69

The second option for the referral physician is to conclude that the airman refused to submit to the test because: “There is not an adequate basis for determining that a medical condition has, or with a high degree of probability could have, prohibited the employee from providing a sufficient amount of urine.”70 If the referral physician makes the determination that a medical condition was not the cause of the inability to urinate and that the airman refused the test, then the MRO, if he accepts the recommendation, must check the “Refusal to Test” box or “Other” box on Step 6 of Copy 2 of the CCF and note the reason next to the “Other” box on the “Remarks” lines, and then sign and date the CCF.71

In terms of the discretion exercised by the Medical Review Officer (MRO) and the referral physician, 49 C.F.R. §40.193(e) is instructive:

For purposes of this paragraph, a medical condition includes an ascertainable physiological condition (e.g., a urinary system dysfunction) or a medically documented pre-existing psychological disorder, but does not include unsupported assertions of “situational anxiety” or dehydration.72

First of all, “medical conditions” are not defined anywhere in these regulations. Secondly, it is common knowledge that dehydration can result in an inability to urinate. It is also common knowledge that some people may feel social pressure or uncomfortable in situations where they have to urinate quickly in response to the command of a Sample Collector. For example, paruresis is a recognized medical condition in which certain people cannot urinate in social settings or under social pressures. Even though paruresis is a “medical condition,” according to the regulation “unsupported assertions of ‘situation anxiety’ or dehydration” are insufficient to lead the MRO or referral physician to conclude that the airman did not refuse the drug test.

These dictates by the FAA in promulgating the regulation virtually command the MRO and the referral physician to find that an airman refused a DOT drug test if he could not produce 45mL of urine within three hours.

The referral physician is required to provide a written statement with his recommendations and the basis for them to the MRO.73 The referral physician must make a determination about whether the airman has a permanent or long-term disability that is highly likely to prevent the airman from providing a sufficient amount of urine for a very long or indefinite period of time and must set forth that determination in a written statement to the MRO.74 In the event the employer of the airman receives a report from the MRO that the test was “cancelled,” then no further action is taken with regard to the airman who remains in the random drug testing pool.75

Anyone reading these regulations can reach the conclusion that this is not a truth-seeking evaluation process. The MRO is not required to refer the airman to an urologist.  There is nothing requiring the airman to undergo a cystoscopy. This is, with all due respect, merely eyewash that allows the FAA to terminate the career of an airman who cannot provide a 45mL sample of urine within three hours unless the airman has a medical condition, an ascertainable physiological condition, or a pre-existing psychological disorder.76 Thankfully, as we shall see shortly, the courts have provided an element of rationality in enforcing these overbearing and fundamentally unfair regulations and provided some level of reason in cases involving allegations made by the FAA that the airman “refused” a drug test.

THE PASTERNAK CASE – TWO APPEALS FROM NTSB DECISIONS TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

The case of Pasternak v. National Transportation Safety Board,77 involves the shy bladder protocol discussed previously. Pasternak was a physician and also a part-time pilot. He was selected for random drug testing, but was not able to provide a sufficient quantity of urine for the test.78 The Sample Collector told Pasternak to remain in the waiting room until he could provide another specimen.79 Pasternak told the Sample Collector he had a scheduled business meeting and he needed to leave the collection site. He returned a few hours at which time he provided a sample that tested negative for drugs.80 When the Medical Review Officer learned that Pasternak had left the testing site, he concluded that Pasternak had refused to submit to a DOT drug test.81

According to the testimony in the record, the Sample Collector never told Pasternak that his departure from the testing facility would be deemed a refusal to test.82  Because Pasternak was not told of the consequences of his leaving for a few hours, he maintained that he had an exculpatory justification for his actions.83  The NTSB disagreed and concluded Pasternak’s abrupt departure from the facility precluded the Sample Collector from telling him that his departure would be considered a refusal to submit to the test.84 The United States Court of Appeals for the District of Columbia reversed and remanded the case to the NTSB because there was no evidence in the record to support the NTSB’s conclusion that Pasternak’s behavior “precluded” the Sample Collector from informing him that his leaving the testing site would be considered a refusal.85

In Pasternak v. Huerta,86 Pasternak once again appealed to the United States Court of Appeals for the District of Columbia after a finding was made by the NTSB that Pasternak had refused to submit to a drug test. In briefings before the United States Court of Appeals for the District of Columbia, the FAA admitted that leaving a drug testing site “with permission” is not a refusal to submit to a drug test.87 Pasternak maintained by virtue of his disclosure to the Sample Collector that he was leaving the testing facility and in the absence of a protest from her that leaving the facility would constitute a refusal, the Board had no evidence before it that Pasternak had refused a drug test.88 The United States Court of Appeals for the District of Columbia again agreed with Pasternak and reversed the Board Decision and vacated its Order.89

THE TULLOS CASE – THE BOARD DOES NOT APPLY A STRICT LIABILITY STANDARD IN DRUG TESTING CASES

The case of Administrator v. Tullos,90 the Administrator brought a revocation action against the airman’s airline transport certificate and his first class medical certificate because he allegedly left the drug testing site without having been told by the Sample Collector that his leaving the site would be considered a refusal to test. The regulations relied upon by the Administrator were 49 C.F.R. §40.191(a)(2) [failing to remain at a testing facility]; and 49 C.F.R. §120.7(o) [refusal to submit to a drug test]. Tullos reported to Care Now, a medical clinic on August 4, 2011.91   However, he provided an insufficient quantity of urine.92   Tulos was told  to wait in the lobby, but when the Sample Collector went to look for him, he was not there.93 Susan Snyder, the Net Jet’s Anti-Drug and Alcohol Program Manager, called Tullos on his cell phone and told him to go back inside, because his absence could be considered a refusal.94 Then, Ms. Snyder, along with the Director of Labor Relations, got on the phone and spoke with the Sample Collector who told Snyder that she had told Tullos he could not leave the collection site.95  Based upon the telephone conversation between Ms. Snyder and the Sample Collector,  the CCF was filled out indicating that Tullos had refused to submit to the test and sent to the FAA.96 

Although Tullos had received annual and recurrent training at Net Jets including anti- drug training, none of the training provided Tullos informed him that if he left the facility, it would be deemed a refusal to test.97 The Sample Collector, Ms. Ebersol, was a high school graduate with a little bit of college.98 She had received a one day training course on urine and drug testing procedures and had been on the job for about one month when Tullos came in for his random drug test.99 When Tullos came in, she told him to empty his pockets and wash his hands and provide a urine specimen.100 When the quantity of urine provided by Tullos as insufficient, Ms. Ebersol told Tullos to go to the lobby and drink five cups of water.101  Although Ms. Ebersol, the Sample Collector, told Susan Snyder, the Anti-Drug and Alcohol Program Manager, that she had told Tullos he could not leave the testing site, the Sample Collector testified that she did not recall telling Tullos he could not leave the lobby and she did not remember telling him he could not leave the building.102

When Tullos was told that his departure from the facility was considered a refusal to test, he became upset and started cursing and threatening to sue with the result that the Medical Review Officer, Dr. Keeble, agreed to allow Tullos to submit to a non-DOT drug test consisting of the same five panel test as appear on a standard DOT drug test.103

Along with Tullos, two Net Jet Pilots testified about their training and experience at Net Jets dealing with drug testing. Daniel Kotowski testified he had never read the Net Jet’s Drug and Alcohol Policy and was not familiar with a Power Point Presentation developed by Net Jet’s Anti-Drug and Alcohol Program Manager.104 Daniel Roose testified that he did not remember initial drug or alcohol training at Net Jets and he did not recall ever discussing the Drug and Alcohol Program during recurrent training.105

Tullos testified that he did sign a Net Jet’s Training Sheet, but he did not believe it pertained to him, since he did not have a drug problem and rarely drank.106 Tullos testified he had no choice but to sign the Training Sheet indicating he received training.107 More importantly, Tullos testified that if he had been told by the Sample Collector that his leaving the facility would be considered a refusal to test, he would have remembered that instruction.108 That would, according to Tullos have been an “ah ha moment” that he would have remembered.109

In contrast to the testimony of Tullos that the Sample Collector did not warn him that leaving the facility would be deemed a refusal to test, the Sample Collector admitted that she did not recall telling him that he could not leave the lobby and she did not remember telling him he could not leave the building.110  On the date in question, Tullos went outside the building, because the interior was cold and he wanted to warm up.111 He sent an email to Ms. Snyder, the Anti-Drug and Alcohol Program Manager, asking if it was possible to use a blood sample in a worst case scenario.112  Next, Tullos received a phone call from the Union Steward telling him the company had already decided that his leaving the facility constituted a refusal to test. Then, Tullos confronted the Sample Collector in the presence of another witness and when Tullos asked her point blank if she told him his leaving the facility would constitute a refusal to test, the Sample Collector said:  “I don’t remember, but I don’t think so.”113  Tullos further testified that he had not seen the regulation that if he left the test site that would be considered a refusal.114 His memory about training at Net Jets was that they covered flight and duty time regulations, the use of supplemental oxygen, documentation of flight logs and related materials.115

The Administrator’s position at the hearing was that the training Tullos received at Net Jets did not matter, since Tullos was supposed to know the regulations.116 The Administrative Law Judge, in considering the evidence before him, noted that the training materials prepared by Net Jets did not define or discuss specifically the issues of leaving the testing site and did not mention that leaving a testing facility would be considered prohibited conduct.117  In fact, Ms. Snyder, the Net Jets Anti-Drug and Alcohol Program Manager admitted that her PowerPoint Presentation did not state that leaving the collection site or failure to remain at the collection site constitutes a refusal to test.118 Furthermore, the Net Jets PowerPoint Presentation said nothing about the shy bladder procedure.119 The Court also noted there was no definition about what constitutes leaving the facility and no indication that leaving a facility constitutes a refusal to test. Accordingly, the Administrative Law Judge found that the Net Jet training materials did not really inform Tullos that if he left the testing site during the shy bladder procedure it would constitute a refusal to test.120 Based upon the record before him, Administrative Law Judge Montaño found that the Sample Collector, Ms. Ebersol, failed to tell Tullos that if he left the lobby of the testing facility or left the building, it would be considered a refusal to test.121 In overruling the Administrator’s Order of Revocation and finding in favor of Tullos, Judge Montaño made the following observations in his Decision:

This case is not controlled by a strict liability standard, so his knowledge of the statute is something that I may consider. I found the testimony of the Respondent to be credible.  I do not believe he was told not to leave the test site by Ms. Ebersol and the training he received at Net Jets certainly did not inform him of that prohibition.

As to the case law cited by the parties in this case, none of the cases cited stand for the proposition that the Administrator is asking me to follow, that I need only look to the regulation as to whether or not the respondent is aware of the regulation and whether he complied with it. The Administrator’s argument is that the regulation trumps all testing procedure, training, policy, and what should be controlling, of course, is the regulation. Again, it appears to me that that is asking me to apply a strict standard of liability in this case. The case law does not support that.

The majority of cases cited deal with testing procedure. Specifically, the case most on point is a decision by the Court of Appeals for the District of Columbia, the case of Pasternak v. NTSB, which dealt with the issue of whether a collector had specifically informed, in case this case Dr. Pasternak, that his departure from the testing facility would be deemed a refusal. The discussion of what information was provided by the collector to Dr. Pasternak is discussed at length. It is an important issue certainly for the appeal. It was an important issue for the ALJ in the case. It is an important for the National Transportation Safety Board when they reviewed the ALJ decision.

The case has been remanded to the NTSB for further proceedings relative to credibility findings by the Administrative Law Judge. While the court noted in its decision that 49 C.F.R. §40.191(a)(2) may be a strict liability provision, it does not make that finding. I do not know of any other case in which the Board finds 40.191(a)(2) to be a strict liability standard.

Therefore, I must weigh all of the evidence before me in rendering the decision in this case. Based on weighing all of the evidence, the evidence provided by the Administrator and the evidence provided by respondent, I find that the Administrator has not proven by a preponderance of reliable, probative and credible evidence that respondent’s conduct on April 4, 2011, constituted a refusal

to submit to a required drug test under 49 U.S.C. 40.191(a)(2) and (3) (sic), and 14 C.F.R. 120.7. Consequently, I do not find that the Respondent refused to submit to a drug or alcohol test as required under 14 C.F.R. Part 120. I cannot find that the Administrator has established the grounds for revocation of respondent’s ATP, airline transport certificate or his first class airman medical certificate.122

THE TAYLOR CASE – HOW THE NTSB LOOKS AT HAIR SAMPLE TESTS

In Administrator v. Taylor,123 Judge Pope of the NTSB affirmed an emergency  revocation of the airman’s airline transport pilot certificate and medical certificates following a gear up landing and post-accident drug test. During post-accident drug testing, the airman submitted a urine sample collected at Cranston/Dottin Laboratory in St. Thomas, the sample being submitted to One Source Toxicology Laboratory, with a positive findings for cocaine on December 2, 2003. On December 9, 2003, the Medical Review Officer, Dr. Wayne Keller, verified the positive test result.124 Since the sample was split, the airman had the remaining sample submitted to Lab Corp in San Diego, California which again found a positive test result for cocaine.125 From the time the airman was notified on December 5, 2003, up to and including the date of the notice of emergency order of revocation, the airman did not provide any letter or explanation from a doctor or a dentist that could explain the positive test result or that reverse the positive result to a negative result.126

The airman asserted as an affirmative defense a hair test result taken two weeks and ten days after the urine test; and the hair test results demonstrated no signs of drugs in his system at the time of the urine test.127

At the hearing, Dr. Keller, the Medical Review Officer, testified that the federal testing protocols were followed.128 Dr. Keller further testified that he offered TaYlor the opportunity to provide a medical explanation for the positive results.129  In response to Dr.Keller’s request for an explanation, Taylor told Dr. Keller he used vitamins, PABA, ephedra, poppy seed food products, flu and pneumonia vaccinations, and he was exposed to hydraulic fluid at the time of the landing incident.130 However, Taylor never provided Dr. Keller with any documentation or medical evidence to show that any of those things could have resulted in the positive urine test for cocaine.131

The Administrator presented the testimony of Dr. Yale Caplan who stated that hair sample analysis has not yet been approved for use in federal drug testing programs.132  Dr. Caplan testified that the Department of Health and Human Services (HHS) had issued a Notice of Proposed Rule Making (NPRM) proposing to allow testing of hair, sweat, and oral fluids in addition to urine which is already authorized by the Federal Workplace Drug Testing Programs.133 The HHS NPRM provided that, if adopted, the new rules would permit agencies to use hair testing for “pre-employment, random, return-to-duty, or follow up testing.”134 The NTSB, while considering the status of the HHS NPRM, noted that it did not mention hair testing as an appropriate method for reasonable suspicion/cause testing or post-accident testing.135 Dr. Caplan testified that because a ninety-day hair growth was the standard sample size, a limited or single instance of drug use during that period would be so diluted that it would be undetected by such a test.136  In light of the science on the subject matter, it was the opinion of Dr. Caplan that a positive urine test followed by a negative hair analysis test were not necessarily inconsistent, unless the airman was a chronic user.137 The NTSB, in affirming the initial decision of Judge Pope noted that the airman had not presented any evidence to show his sample may have been contaminated or mixed up or any scientifically reliable to support his theory that exposure to hydraulic fluid or PABA could have caused a false positive in a urine test for cocaine metabolite.138 The Board noted that Judge Pope reasoned that the negative hair test results offered by the airman were not sufficient offset the urine test results.139 Further, Judge Pope found the testimony of the airman was not credible and entirely unconvincing to the extent the airman testified he did not know how the cocaine got into his urine.140

The airman appealed the initial decision of Judge Pope asserting two challenges. First, the airman asserted that Judge Pope failed to afford any weight to the hair analysis evidence. Secondly, the airman maintained that the urine tests were in error. In response to the first argument, the Board noted that Judge Pope did not ignore all the evidence on hair testing.

Rather, he considered the testimony and found the urine sample was collected and tested by a certified laboratory in accordance with federally-established standards that no federal standards or laboratory certifications had yet been established for hair analysis, and that hair analysis was more useful for detecting chronic drug use and would not detect a single incident of cocaine use.141 Judge Pope, after weighing and considering all of the evidence, gave more weight to the urine test results than to the hair test results.142 The NTSB found there was no basis for the airman’s assertion that Judge Pope misunderstood the evidence on hair testing. Furthermore, the Board, in commenting on hair testing noted that the HHS NPRM would permit agencies to use hair testing as a supplement to existing urine testing programs.143 In summarizing the Board’s findings in relation to the airman’s first argument, the Board noted:

The law judge simply concluded (correctly, in our judgment) that the negative hair analysis results did not disprove the positive results of the urine test.

Assuming the test result are valid and found accurate, the record is abundantly clear that the differing results of urine and hair test are not inconsistent.144 With regard to the respondent’s second argument that the evidence showed the urine tests were in error, the airman argued that drug impairment was inconsistent with his flying skills during the emergency landing, that he was praised by witnesses for his performance, that his Principal Operations Inspector was surprised the positive test results, and that respondent voluntarily submitted to the urine test.145 The airman further asserted that the FAA did not disprove the possibility that hydraulic fluid to which he was exposed on the day of the incident could have caused the positive test result for cocaine metabolites.146

The NTSB summarily disposed of the respondent’s arguments concerning the second element of his appeal declaring:

The factual circumstances respondent cites do not disprove the positive urine test results nor does his suggestion that hydraulic fluid could be to blame for the positive results. It was not, as respondent claims, “incumbent on the FAA to produce scientific evidence showing that hydraulic fluid cannot adulterate urine to make it appear to obtain cocaine.”  To the contrary, a respondent has the burden of proving an affirmative defense. He presented no scientific or medical evidence to support his theory, nor did he even properly notify the Administrator of this defense by including it (or any other theory pertaining to adulterants) in his answer to the Administrator’s complaint or in his pre-trial discovery responses.

Nevertheless, the Administrator testimony at the hearing from Dr. Keller that he consulted a scientist at One Source Laboratory about whether PABA or hydraulic fluid could have caused a positive result, and was told that neither would have any effect on the results.147

Today, with the Pilots Bill of Rights, Dr. Keller would not be allowed to testify about what some unknown scientist at One Source Laboratory told him about whether PABA or hydraulic fluid could have caused a positive test result, because such testimony is hearsay. With the adoption of the Pilots Bill of Rights making the Federal Rules of Evidence applicable to aviation safety proceedings, upon a proper objection, the testimony about what Dr. Keller learned from an unspecified scientist at One Source Laboratory would have been excluded as an out of court statement, not under oath, offered in the court for the truth of the matter asserted therein. See Rule 801(c), Federal Rules of Evidence. In any event, it is clear from the Board’s pronouncement that an airman asserting an affirmative defense bears the burden of proving medical or scientific evidence that would support that defense. In light of the foregoing, the NTSB affirmed the decision of Judge Pope revoking the airman’s airline transport pilot’s certificate and his medical certificate.

Taylor indicates that an airman relying upon a hair test result may employ it as part of his affirmative defense. However, because the scientific testimony in Taylor indicated that a hair sample test may not detect a single instance of drug use, the judge may be inclined to grant more weight to the urine test than the hair sample test as was the case involving Judge Pope in Taylor.

CONCLUSION

The cases and authorities discussed in this article demonstrate the troubling and perplexing nature of drug testing in drug testing and litigation.  In order to overcome the FAA’s order of revocation, Dr. Pasternak had to expend considerable resources including two appeals to the United States Court of Appeals for the District of Columbia.  During his first appeal, the Court of Appeals overturned the NTSB decision because the Board affirmed a finding he had refused a drug test when there was no evidence the Sample Collector told Dr. Pasternak leaving the facility would be deemed a refusal to test. On the second appeal by Pasternak to the United States Court of Appeals for the District of Columbia, the Court again reversed the NTSB because the FAA conceded that leaving a drug testing facility with permission does not constitute a refusal to test.

Tullos, like Pasternak involved the question of whether the Sample Collector had told the airman that if he left the facility, it would be considered a refusal to test. Although the Sample Collector told Ms. Snyder the Anti-Drug and Alcohol Program Manager at Net Jets that she did tell Tullos if he left the facility it would be a refusal to test, she contradicted herself and admitted she did not recall telling Tullos he could not leave the lobby or the building.

Both Pasternak and Tullos involve situations where the airman left the drug testing facility. One may wish to ponder how the NTSB would decide a case if the airman remained at the facility for three hours and could not provide a 45mL sample of urine.

Taylor indicates that airmen may employ a hair test result as an affirmative defense in a charge brought by the FAA that illegal drugs were in the airman’s system. However, the science may militate against the weight of hair testing as opposed to urine testing to the extent that a single instance of using illegal drugs may not appear on a hair sample test.

As we conclude our discussion on drug testing, the reader may wish to consider the following drug testing cliff notes:

DRUG TESTING CLIFF NOTES

  1. You have the right to request the Sample Collector provide his or her identification. 49 C.F.R. §40.61(d).
  2. The Sample Collector is required to explain the collection procedures including showing you the instructions on the back of the Custody Control Form (CCF).  49 C.F.R. §40.61(e).
  3. Once you enter the collection site, the testing process should commence without undue delay. 49 C.F.R. §40.61(b).
  4. The Sample Collector must instruct you to wash and dry your hands before the testing commences. 49 C.F.R. §40.63(b).
  5. Collector must tell you that you cannot wash your hands again until after delivering the specimen. 49 C.F.R. §40.63(b).
  6. Either you or the Collector or both of you must unwrap or break the seal of the collection container; provided the seal of the specimen bottle should be unbroken at that time. 49
  7. Collector is required to tell you that you (1) must provide a 45mL sample of urine, (2) not to flush the toilet, and (3) to return the specimen to the Collector as soon as the voiding process has been completed.  49 C.F.R. §40.63(d).
  8. Generally, the Collector is not allowed to go into the restroom with you.  49 C.F.R. §40.63(d)(1).
  9. Collector may set a reasonable time for the voiding.  49 C.F.R. §40.63(d)(2).
  10. Remain at the drug testing facility until the drug testing process is complete. Until then, do not leave the drug testing facility.  49 C.F.R. §40.191(a)(2).
  11. While hair testing samples may be admissible in evidence, because hair testing may not reveal a single instance of illicit drug use, the judge may give more weight to the urine test than the hair sample test.  Administrator v. Taylor, supra.
  12. If the airman can demonstrate that the Sample Collector failed to follow proper protocols and procedures, the Court may consider the drug test results unreliable allowing the airman to prevail.  Petersen v. Hinson, supra.
  13. In the event you observe irregularities in the testing process, make a note of them and keep them for future reference.  Petersen v. Hinson, supra.Hopefully, the contents of this article will allow airmen and their counsel to achieve just and informed outcomes in litigation brought by the FAA asserting the airman refused to submit to or failed a drug test.
  1. 49 C.F.R. §40.33(b), (c)
  2. 49 C.F.R. §40.33(c)(1).
  3. 49 C.F.R. §40.61(d).
  4. 49 C.F.R. §40.61(e).
  5. 49 C.F.R. §40.61(b).
  6. 49 C.F.R. §40.63(b).
  7. Id.
  8. Id.
  9. 49 C.F.R. §40.63(d).
  10. 49 C.F.R. §40.63(d)(1).
  11. 49 C.F.R. §40.63(d)(2).
  12. Administrator v. Todd S. Petersen, 1995WL623847 (N.T.S.B.), NTSB Docket No. SE-14007 (hereinafter “Petersen I”).
  13. Id. at 2.
  14. Id. at 2-4.
  15. Id.
  16. Id.
  17. Id.
  18. Id.
  19. Id.
  20. Id.
  21. Id.
  22. Id.
  23. Id.
  24. Id.
  25. Id. at 2.
  26. Id. at 3.
  27. Id
  28. Id.
  29. Id.
  30. Id. at 2.
  31. Id. at 3.
  32. Id.
  33. Id.
  34. Id.
  35. Id.
  36. Id.
  37. Id.
  38. Id.
  39. Id.
  40. Id.
  41. Id.
  42. Id. at 4-6.
  43. Id. at 4.
  44. Id.
  45. Id. at 1,6.
  46. Id. at 5.
  47. Id. at 5
  48. Id. at 6, 7.
  49. Todd Petersen v. Administrator, Federal Aviation Administration, 1995WL702463 (N.T.S.B.), NTSB Docket No.222-EAJA-SE-14007 (July 18, 1995) (hereinafter “Petersen II”).
  50. Id. at 2.
  51. Id.
  52. Id.
  53. Todd S. Petersen v. David R. Hinson, Administration, Federal Aviation Administration, NTSB EA-4490 (N.T.S.B.), 1996WL61633 (hereinafter “Petersen III”).
  54. Id. at 4.
  55. Id.
  56. 14 C.F.R. §120.7(o).
  57. 49 C.F.R. §40.191(a)(5).
  58. 49 C.F.R. §40.65(a).
  59. 49 C.F.R. §40.65(a)(2).
  60. 49 C.F.R. §40.65(b)(5), (6).
  61. 49 C.F.R. §40.65(b)(6).
  62. Id.
  63. 49 C.F.R. §40.191(a)(5).
  64. 49 C.F.R. §40.193(b)(1).
  65. 49 C.F.R. §40.193(b)(1), (2)
  66. 49 C.F.R. §40.193(c).
  67. 49 C.F.R. §40.193(c)(1)(i), (iii).
  68. 49 C.F.R. §40.193(d)(1).
  69. 49 C.F.R. §40.193(d)(1)(i), (ii).
  70. 49 C.F.R. §40.193(d)(2).
  71. 49 C.F.R. §40.193(d)(2)(i), (ii).
  72. 49 C.F.R. §40.193(e).
  73. 49 C.F.R. §40.193(f).
  1. 49 C.F.R. §40.193(h).
  2. 49 C.F.R. §40.193(i).
  3. 49 C.F.R. §40.193(e).
  4. Pasternak v. National Transportation Safety Board, 596 F.3d 836 (D.C. Cir. 2010) (“hereinafter “Pasternak”).
  5. Id. at 837.
  6. Id.
  7. Id.
  8. Id.
  9. Id. at 838.
  10. Id.
  11. Id.
  12. Id.
  13. Pasternak v. Huerta, 513 Fed.Appx. 1 (D.C. Cir. 2013) (hereinafter “Pasternak II”).
  14. Id.
  15. Id.
  16. Id.
  17. Administrator v. Tullos, 2011WL6849855 (N.T.S.B.), NTSB Docket No. SE-19196 (November 30, 2011) (hereinafter “Tullos”).
  18. Id. at 3.
  19. Id.
  20. Id.
  21. Id.
  22. Id.
  23. Id.
  24. Id.
  25. Id. at 59.
  26. Id.
  27. Id.
  28. Id.
  29. Id.
  30. Id.
  31. Id. at 6, 7.
  32. Id. at 7.
  33. Id. at 8.
  34. Id.
  35. Id.
  36. Od.
  37. Id. at 5.
  38. Id. at 8.
  39. Id. at 9.
  40. Id. at 9.
  41. Id.
  42. Id.
  43. Id. at 10.
  44. Id.
  45. Id.
  46. Id.
  47. Id. at 11.
  48. Id. at 11.
  49. Id. at 12-13.
  50. Administrator v. Taylor, NTSB Order No. EA-5132 (January 19, 2005) (hereinafter “Taylor”).
  51. Id. at 3.
  52. Id. at 4.
  53. Id. at 4.
  54. Id.
  55. Id.
  56. Id. at 4,5.
  57. Id.
  58. Id.
  59. Id. at 5.
  60. Id.
  61. Id.
  62. Id.
  63. Id. at 5, 6.
  64. Id. at 6.
  65. Id. at 6.
  66. 139 Id.
  67. 140 Id.
  68. 141 Id. at 6,7.
  69. 142 Id.
  70. 143 Id.
  71. 144 Id. at 8.
  72. 145 Id.
  73. 146 Id. at 8,9 .
  74. 147 Id. at 9.