Ryan J. Paul v. Federal Aviation Administration

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 A VIATION 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.

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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 . . .

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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-

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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

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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.

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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

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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

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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

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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

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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]

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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.

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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

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[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 &

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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

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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

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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.

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R ANDOLPH , 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).

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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.

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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

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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.

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