NTSB and FAA drug test error

On Monday, December 13, 2021, the United States Court of Appeals for the District of Columbia will hear oral arguments in Pham v. National Transportation Safety Board and the Federal Aviation Administration. At issue is whether an airman can be found to have failed to remain at a drug testing facility where the person administering the drug test failed to give him a shy bladder instruction as required by 49 CFR Section 40.194(b)(2) of his right to consume 40 ounces of water over a period of three hours. The NTSB found there was no evidence the warning was given, but still found he refused a drug test, reducing the sanction from a  revocation to a suspension of 180 days. Pham has appealed alleging case law required that he be exonerated, since the technician administering the drug test failed to follow the rules. The FAA has appealed seeking to reinstate its sanction of revocation. Never before has the NTSB imposed a sanction of suspension for an alleged refusal to submit to a drug test.