James K. Knight v. National Transportation Safety Board and Federal Aviation Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 7, 2026 Decided August 18, 2026

No. 25-1158

J
AMES K. KNIGHT,
PETITIONER

v.

N
ATIONAL TRANSPORTATION SAFETY BOARD AND FEDERAL
AVIATION ADMINISTRATION,
R
ESPONDENTS

On Petition for Review of an Order of the
National Transportation Safety Board

Elizabeth A. Vasseur-Browne argued the cause and filed
the briefs for petitioner.
Jessica E. Kabaz-Gomez, Senior Attorney, Federal
Aviation Administration, argued the cause and filed the brief
for respondent.
Before: K
ATSAS, RAO and CHILDS, Circuit Judges.
Opinion for the Court filed by Circuit Judge C
HILDS.
C
HILDS, Circuit Judge: Pilot James Knight was found by
an Administrative Law Judge (ALJ) to have violated federal

2

aviation regulations by performing a safety-sensitive function
with a prohibited substance in his system. Based on this
violation, the Administrator of the Federal Aviation
Administration (Administrator) sought revocation of Knight’s
airline transport pilot, ground instructor, and medical
certificates. Knight successfully persuaded the National
Transportation Safety Board (Board) that he had mistakenly
ingested his son’s prescription medication containing
amphetamine and that revocation was thus an unreasonable
sanction. The Board accordingly reduced Knight’s sanction
from revocation to a 90-day suspension.
Knight then filed an application for attorney’s fees and
expenses under the Equal Access to Justice Act (EAJA), 5
U.S.C. § 504. An ALJ granted Knight’s application. But the
Board reversed, concluding that although Knight was the
“prevailing party” because he had succeeded in obtaining a
reduced sanction in lieu of revocation, the Administrator’s
position in seeking revocation was “substantially justified.” Id.
§ 504(a)(1).
Knight now petitions for review of the Board’s order
denying his EAJA motion for attorney’s fees and expenses.
Because we conclude that the Board’s ruling was supported by
substantial evidence, we deny Knight’s petition.
I.
A.
On Thursday, December 20, 2018, at approximately 9:00
a.m., Knight reported to work at Channel Islands Aviation and
received notice that he had been selected for a random drug test
under his employer’s Federal Aviation Administration (FAA)
mandated drug-testing policy. That same day at approximately
1:30 p.m., he reported for the drug test. And on December 24,

3

the test results came back, showing that he had tested positive
for amphetamine. Two days later, Channel Islands Aviation
“grounded” Knight and removed him from performing safety-
sensitive functions. J.A. 86. After completing the Department
of Transportation’s return-to-duty process, Channel Islands
Aviation “reinstated” Knight as “its assistant chief pilot
effective January 17, 2019.” Id.
Federal aviation regulations prohibit a certificate holder
from performing a safety-sensitive function “while that
individual has a prohibited drug . . . in his or her system.” 14
C.F.R. § 120.33(b). Amphetamine is one such prohibited drug.
See id. § 120.7(k) (citing 49 C.F.R. § 40); 49 C.F.R. §§ 40.82;
40.85. Safety-sensitive functions, predictably, encompass
piloting an aircraft. 14 C.F.R. § 120.7(n) (citing 14 C.F.R.
§§ 120.105, 120.215); see also id. § 135.100(a)–(b). An
individual is “performing a safety-sensitive function during
any period in which he or she is actually performing, ready to
perform, or immediately available to perform such function.”
Id. § 120.7(i).
FAA guidance provides that a single act of “[p]erforming
a safety-sensitive function with a prohibited drug in system,”
“[g]enerally” warrants revocation, because such “acts of
misconduct are, by their very nature, so egregious or significant
as to demonstrate that the certificate holder does not possess
the care, judgment, or responsibility to hold a certificate.” U.S.
Dep’t of Transp., FAA Order 2150.3C, at 9-13–14 & Fig. 9-
5(10) (Sept. 18, 2018).
Based on Knight’s positive drug test and the conclusion
that Knight had performed a safety-sensitive function “while
having a prohibited drug in [his] system,” J.A. 13, the
Administrator sent Knight a Letter of Investigation on February
21, 2019, notifying him that he was under investigation.

4

Responding to the Letter, Knight pledged his “full
cooperation” and offered to “explain the events that resulted in
a positive drug test result.” J.A. 191. Knight elaborated that
he had inadvertently ingested his son’s Vyvanse medication
instead of his own prescribed medication while dealing with a
medical emergency involving his son. Id. To this letter, Knight
attached excerpts from his son’s medical records and
photographs of the Vyvanse and Knight’s own medication
bottles.
On May 20, 2019, the Administrator issued an Emergency
Order of Revocation, pursuant to 49 U.S.C. § 46105(c). The
Revocation Order sought revocation of Knight’s airline
transport pilot, ground instructor, and medical certificates,
asserting that Knight had performed a safety-sensitive function
while having a prohibited drug in his system in violation of 14
C.F.R. § 120.33(b), and asserted that he “lack[ed] the
qualifications to hold any class of airman medical certificates
under the medical standards in 14 C.F.R. §§ 67.107(b)(2),
67.207(b)(2), and 67.307(b)(2).” J.A. 13. The Administrator
subsequently filed the Revocation Order as the Complaint.
Knight timely appealed the Revocation Order and filed an
Answer to the Complaint. In his Answer, Knight denied
several factual allegations, asserted six affirmative defenses,
and sought dismissal of the Complaint. Pertinent here, Knight
denied the key allegation that he had “performed a safety-
sensitive function for an air carrier certificate holder while
having a prohibited drug in [his] system,” J.A. 13, and asserted
that “he never intentionally consumed any controlled substance
that was not prescribed to him,” J.A. 21.
During discovery, the parties stipulated to, inter alia, the
following facts: (1) “Vyvan[s]e medication contains
Amphetamines,” (2) Knight’s “drug test was verified as

5

positive by a Medical Review Officer,” (3) “There is no
evidence that [Knight] intentionally or knowingly ingested his
son’s Vyvan[s]e medication,” (4) “There is no evidence that
[Knight] was ever impaired by the Vyvan[s]e medication.”
J.A. 85–87.
The case proceeded to a hearing before an ALJ on
September 5, 2019. To support his accidental-ingestion
affirmative defense, Knight testified to the series of events in
December 2018 that had led to his positive drug test result.
Knight testified that on December 16, 2018, he had been
on duty as a pilot and returned home around 12:30 a.m. Hours
later, his son awoke in pain, prompting Knight and his wife to
take their son to the emergency room. Without receiving a
diagnosis, the family returned home between 5:00 a.m. and
6:00 a.m. on December 17. Knight called out of work on
December 17 because he did not have adequate crew rest. In
the early hours of December 18, Knight’s son was still in pain
and so, following medical advice, the family returned to the
emergency room. Knight’s son was discharged that afternoon.
Upon returning home, Knight noticed that the bottle for his
son’s Vyvanse medication was on the bathroom counter, which
caused him to realize that he had taken his son’s Vyvanse
medication rather than his own prescribed cholesterol
medication when rushing back to the emergency room on
December 18. Knight attributed the mistake to the similarities
in the pill bottles and the stress and lack of sleep caused by his
son’s ongoing medical emergency. He also testified that until
their recent move, his medication had been stored separately
from his son’s, yet due to space constraints in their current
home the medications were stored together.
On cross-examination, Knight affirmed that he did not
report the ingestion of the prohibited drug to the FAA or his

6

employer before reporting to work on December 20. He also
testified to having known that Vyvanse was a “similar drug” to
amphetamine. J.A. 135.
Additionally, Knight presented documentary evidence
supporting his accidental-ingestion affirmative defense,
including his son’s hospital records and photographs showing
the similarities in the bottles containing his son’s Vyvanse
medication and his own cholesterol medication.
Knight also called several witnesses in his defense: the
drug and alcohol counselor to whom Knight was referred after
being grounded by his employer, who testified that he believed
Knight’s story and had recommended Knight’s return to duty;
several character witnesses who, having worked with Knight
for several years, spoke to his integrity; and Knight’s wife, who
corroborated Knight’s testimony regarding the family’s
medical emergency.
The Administrator called one witness, Lacey Jones, the
manager of the FAA Special Investigations Branch, who had
conducted the investigation into Knight’s alleged drug
violation. Jones’ duties, she stated, “include receiving the
incoming reports of drug and alcohol violations, assigning
those cases out for investigation, . . . reviewing the
enforcement investigative report . . . , and recommending [a]
sanction” to the legal department. J.A. 108. She testified that
she had recommended revocation as the sanction in Knight’s
case.
The following day, the ALJ issued an Oral Initial Decision
finding that the Administrator had “proven his prima facie case
of a verified positive drug test for a prohibited drug” and that
Knight “was available to perform safety-sensitive functions
with a prohibited drug in his system” in violation of 14 C.F.R.
§ 120.33(b). J.A. 144. The ALJ further found that Knight “did

7

not prove his affirmative defense of innocent or unknowing
ingestion by a preponderance of the evidence.” Id. Yet the
ALJ noted that “nothing in [Knight’s] testimony” had
“indicate[d]” that “he was attempting to be evasive in any way
or to falsify his testimony,” and commented on Knight’s
“redeeming value.” J.A. 145. In considering the appropriate
sanction, the ALJ found that given “all of the evidence,” J.A.
144, “revocation” was “not appropriate,” and thus reduced the
Administrator’s sanction of revocation to a 90-day suspension,
J.A. 145.
The parties cross-appealed to the Board. Knight
challenged the ALJ’s ruling that he had failed to prove his
accidental-ingestion affirmative defense. The Administrator
challenged the ALJ’s reduction of the sanction from revocation
to a 90-day suspension.
The Board concluded that revocation was not a reasonable
sanction based on its “de novo review,” J.A. 402, of the
“aggravating and mitigating factors,” J.A. 405. Starting with
the mitigating factors, the Board found (contrary to the ALJ’s
finding) that Knight had proven his accidental-ingestion
affirmative defense by a preponderance of the evidence. In the
Board’s view, the ALJ’s determination that Knight’s testimony
was credible and the corroborating evidence supporting
Knight’s narrative—including character witnesses, medical
records, and photographs—were sufficient to substantiate
Knight’s affirmative defense. As for aggravating factors, the
Board found that Knight “knew that he took Vyvanse and failed
to report the accidental ingestion of a prohibited substance to
his employer once he became aware of it and still reported for
duty,” and did “not ‘ground’ himself until he tested positive for
a prohibited drug.” J.A. 407. “As a certificate holder,” the
Board explained, “[Knight] had a responsibility to report the
ingestion of a prohibited drug as soon as he discovered it.” Id.

8

Balancing these factors, the Board upheld the ALJ’s 90-day
suspension.
The Board denied the Administrator’s petition for
reconsideration. The Administrator then moved for a stay
pending judicial review and requested expedited consideration.
After Knight filed an opposing memorandum, the
Administrator withdrew the motion. On November 11, 2021,
Knight received his certificates in the mail from the
Administrator.
B.
On November 12, 2021, Knight filed an application
seeking an award of $63,648.05 in attorney’s fees and expenses
under the EAJA.
1
The EAJA provides for an award of
attorney’s fees in an agency adjudication “to a prevailing party
. . . unless the adjudicative officer of the agency finds that the
position of the agency was substantially justified or that special
circumstances make an award unjust.” 5 U.S.C. § 504(a)(1).
Applying this standard, an ALJ granted Knight’s
application and awarded him $62,821.32. But on appeal, the
Board reversed. First, the Board concluded that Knight was a
“prevailing party” under the EAJA. J.A. 632. Second, the
Board concluded that the “administrative record, as a whole,
which is made in the adversary adjudication,” 5 U.S.C. §
504(a)(1), showed the Administrator’s position in the
underlying agency adjudication was “substantially justified,”
J.A. 634 & n.40. Specifically, the Board explained that since
Knight had “reported to work in his safety sensitive position
with a prohibited drug in his system,” the Administrator proved
the regulatory violation and thus “there was clearly a basis for
the Administrator to move forward with the case.” J.A. 637–

1
Knight later amended his amount requested to $70,039.

9

38. And despite Knight’s success in proving his accidental-
ingestion affirmative defense, the Board explained, “the case
rested on the [ALJ]’s credibility determination” and “there was
no way to determine the witness[es’] credibility without a
hearing.” J.A. 636. Accordingly, the Board held that “the
Administrator had a reasonable basis for pursuing the
allegations against [Knight],” reversed the ALJ’s decision, and
overturned the EAJA award. J.A. 638.
Knight timely petitioned for review, contesting the
Board’s determination that the Administrator’s position was
substantially justified. For the reasons that follow, we deny his
petition.
II.
Our review of the Board’s EAJA determination is tightly
cabined, requiring us to “modify the determination of fees and
other expenses only if” the Board’s decision denying attorney’s
fees “was unsupported by substantial evidence.” 5 U.S.C.
§ 504(c)(2); see also Loumiet v. Off. of Comptroller of
Currency, 650 F.3d 796, 799 (D.C. Cir. 2011) (reviewing
agency EAJA decision for substantial evidence); Kuhns v. Bd.
of Governors of Fed. Rsrv. Sys., 930 F.2d 39, 41 (D.C. Cir.
1991) (same).
III.
The sole issue on appeal is whether the Board’s
determination that the Administrator’s position was
substantially justified is supported by substantial evidence.
The Administrator bore the burden in the EAJA
proceeding before the ALJ and the Board of demonstrating that
their position on the merits was substantially justified.
SecurityPoint Holdings, Inc. v. TSA, 836 F.3d 32, 39 (D.C. Cir.

10

2016). To satisfy this burden, the Administrator had to prove
that their position was “justified in substance or in the main—
that is, justified to a degree that could satisfy a reasonable
person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988)
(citation modified). In other words, that “it ha[d] a reasonable
basis in law and fact.” Id. at 566 n.2; accord Air Transp. Ass’n
of Canada v. FAA, 156 F.3d 1329, 1332 (D.C. Cir. 1998).
Some of our cases have assessed the reasonableness of the
agency’s position as a “whole,” Kuhns, 930 F.2d at 41 (“The
position of the agency is to be measured as a whole, not by
reference to separate parts of the litigation, such as discovery
requests.” (citation modified)); see also Commissioner, INS v.
Jean, 496 U.S. 154, 159–62 (1990), while others have
considered whether it remained reasonable as the
administrative proceeding advanced through “each successive
phase,” Am. Wrecking Corp. v. Sec’y of Lab., 364 F.3d 321,
325–26 (D.C. Cir. 2004) (per curiam) (noting that the agency’s
position in EAJA cases is analyzed “in a piecemeal fashion,
examining the reasonableness . . . at each successive phase of
the proceeding”); e.g., Alphin v. NTSB, 839 F.2d 817, 819
(D.C. Cir. 1988) (addressing “whether the Administrator of the
[FAA] was substantially justified in initiating and continuing
proceedings against [respondent] resulting in the suspension of
his [certificate]”). We assume without deciding that the latter
standard applies here because the Administrator’s position was
substantially justified even under that more exacting approach.
Knight’s arguments on appeal mirror the contentions that
he raised before the Board in the EAJA proceeding. Knight
contends that the Administrator lacked substantial justification
both when they initiated the case and when they continued to
seek revocation after an ALJ found Knight credible and
reduced the sanction. Taking Knight’s arguments in turn, we
conclude that substantial evidence supports the Board’s
decision rejecting Knight’s arguments challenging the

11

Administrator’s position at each stage of the administrative
proceeding.
A.
To start, substantial evidence supports the Board’s
conclusion that the Administrator had substantial justification
“in law and fact,” Air Transp. Ass’n of Canada, 156 F.3d at
1332 (citation omitted), to issue Knight an Emergency Order
of Revocation.
The Administrator was substantially justified in law
because governing regulations establish that an individual’s
performance of a safety-sensitive function with amphetamine
in his or her system is a violation of 14 C.F.R. § 120.33(b), and
renders the individual unqualified to hold any class of airman
medical certificates under federal aviation medical standards,
id. §§ 67.107(b)(2), 67.207(b)(2), and 67.307(b)(2). And FAA
guidance provides that a “single act” of “[p]erforming a safety-
sensitive function with a prohibited drug in system,”
“[g]enerally” warrants revocation, because such “acts of
misconduct are, by their very nature, so egregious or significant
as to demonstrate that the certificate holder does not possess
the care, judgment, or responsibility to hold a certificate.”
FAA Order 2150.3C, at 9-13–14 & Fig. 9-5(10). The
Administrator was substantially justified in fact given Knight’s
positive drug test indicating that he had performed a safety-
sensitive function with amphetamine in his system.
We are unpersuaded by Knight’s arguments to the
contrary. Knight asserts that the Administrator should not have
issued the Revocation Order because, before doing so, “the
[Administrator] knew that Knight’s ingestion of Vyvanse was
accidental.” Petitioner Br. 20. This argument belies the record.
Before issuing the Revocation Order, the Administrator knew
that Knight intended to claim that the ingestion was accidental

12

and explain the circumstances that had led to him
“inadvertently ingest[ing] his son’s Vyvanse medication” and
the subsequent positive drug test result, as he had indicated in
his response to the Administrator’s Letter of Investigation. Id.
at 7. But the Administrator’s knowledge that Knight sought to
justify the positive drug test does not translate to the
Administrator knowing that Knight’s ingestion of the Vyvanse
was, in fact, accidental. As the Board put it: “[R]equiring the
Administrator to give weight to every certificate holder’s claim
that an illegal ingestion was accidental would render the drug
testing program meaningless and have a negative impact on air
safety.” J.A. 637. Thus, notwithstanding Knight’s response to
the Administrator’s Letter of Investigation stating that he
intended to establish that he ingested the Vyvanse by mistake,
substantial evidence supports the Board’s determination that
the Administrator was justified in fact and law in issuing the
Revocation Order.
B.
Substantial evidence also supports the Board’s conclusion
that the Administrator had substantial justification “in law and
fact,” Air Transp. Ass’n of Canada, 156 F.3d at 1332 (citation
omitted), to require Knight, as the certificate holder, to carry
his burden of “prov[ing]” his accidental-ingestion affirmative
defense by a “preponderance of the evidence.” See Huerta v.
Hermance, NTSB Order No. EA-5706, 2014 WL 1118309, at
*3 (Feb. 25, 2014).
The term “affirmative defense,” as used in this context, is
a bit of a misnomer. Consistent with the Board’s and the
parties’ use of the term, accidental ingestion does not negate
the 14 C.F.R. § 120.33(b) violation; it bears on the resulting
sanction. A certificate holder who proves “accidental
ingestion” of a prohibited substance in violation of 14 C.F.R.

13

§ 120.33(b) is not entitled to dismissal of the violation or the
administrative proceeding entirely. See, e.g., Blakey v.
Kalberg, NTSB Order No. EA-5240, 2006 WL 2332760, at *3
(July 26, 2006) (noting that inadvertent ingestion is not a
“legitimate medical explanation” as defined by 49 C.F.R.
§ 40.151 and thus is not a legally sufficient defense to a
positive drug test result); Hermance, 2014 WL 1118309, at
*11–12 (explaining that “even if believed,” respondent’s
assertion of “inadvertent” ingestion is not “a legally sufficient
defense to the findings of the positive test”). Rather, a
certificate holder who proves accidental ingestion may receive
a reduced sanction—i.e., something less than revocation of
their certificates. See, e.g., Huerta v. Henry, NTSB ALJ Order
No. SE-19769, 2015 NTSB LEXIS 17, at *19, *31 (Apr. 15,
2015) (finding that respondent “established his inadvertent
consumption by a preponderance of reliable, credible and
probative evidence” and reduced sanction from revocation to
180-day suspension); Dickinson v. Myers, NTSB ALJ Order
No. SE-30845, 2020 NTSB ALJ LEXIS 1, at *30–31 (Aug. 21,
2020) (similar, but reduced to a 90-day suspension). In this
way, the accidental-ingestion defense is more of a mitigating
factor relevant to determining a sanction than a true affirmative
defense to the charged violation.
After the Administrator issued the Revocation Order,
Knight filed his response denying that he had “performed a
safety-sensitive function for an air carrier certificate holder
while having a prohibited drug in [his] system,” J.A. 13, and
invoking, inter alia, an accidental-ingestion defense.
Subsequently, the parties stipulated that: (1) “[Knight’s] drug
test was verified as positive by a Medical Review Officer”;
(2) “There is no evidence that [Knight] intentionally or
knowingly ingested his son’s Vyvan[s]e medication”; and
(3) “There is no evidence that Knight was ever impaired by the
Vyvan[s]e medication.” J.A. 86–87. Knight contends that

14

those stipulations, together with his accidental-ingestion
defense, left the Administrator without substantial justification
to continue seeking revocation. The administrative record
substantiates the Board’s disagreement with Knight’s position.
As the record shows, contrary to Knight’s characterization,
the Administrator never stipulated that Knight’s ingestion of
his son’s Vyvanse was accidental. Cf. Petitioner Br. 20
(asserting, without support, that “the FAA knew that Knight’s
ingestion of Vyvanse was accidental”). And the parties’
stipulations that there was “no evidence” that Knight had
ingested Vyvanse “intentionally or knowingly,” standing alone,
did not establish by a preponderance of the evidence that
Knight had ingested the medication accidentally. See
Hermance, 2014 WL 1118309, at *3.
Indeed, as Knight acknowledges, even after the parties’
stipulations, they still disagreed about what the corresponding
sanction for the violation should be. The Administrator sought
full revocation; Knight hoped for a less severe sanction based
on his accidental-ingestion defense. The hearing before the
ALJ was thus necessary to resolve the question “of whether
[Knight] factually proved the defense by a preponderance of
the evidence” such that his sanction could be reduced. Id.
The administrative record buttresses the Board’s
conclusion that the ALJ’s credibility findings, which are
“within the exclusive province of the [ALJ],” were essential to
the resolution of whether Knight could establish his accidental-
ingestion defense. J.A. 636 (citation omitted). And as the
Board noted, per established Board precedent, if key factual
issues hinge on witness credibility, then the Administrator is
substantially justified in pursuing a complaint. J.A. 635 (citing
Application of Keith, NTSB Order No. EA-5223, 2006 WL
1462193, at *3 (May 24, 2006)); Application of Peterson,

15

NTSB Order No. EA-4490, 1996 WL 616333, at *3 (Oct. 7,
1996)).
As the Board explained, the success of Knight’s
accidental-ingestion defense turned on the ALJ’s “believ[ing]
[Knight’s] story surrounding the drug ingestion.” J.A. 636.
This required the ALJ to not only consider Knight’s credibility,
but also the credibility of the five witnesses that Knight called
in his defense. Indeed, the Board elaborated, if the ALJ “did
not believe [Knight’s] story surrounding the drug ingestion,
[the ALJ] would have been less likely to find” that Knight:
“rushed his son to the emergency room,” that “his medications
were not separated from his son’s” due to a recent move, that
his “medication looked similar to his son’s medication,” “and
critically, [that] his ingestion of the prohibited drug was
inadvertent.” Id. What’s more, in affirming the ALJ’s 90-day
suspension, as opposed to revocation, the Board too “relied on
the [ALJ’s] finding that [Knight’s] testimony was credible in
concluding that he proved his affirmative defense of accidental
ingestion.” Id. Accordingly, the record supports the Board’s
conclusion that Knight’s defense—and in turn the resolution of
the administrative proceeding—required a hearing and “rested
on the [ALJ’s] credibility determination[s].” Id.
For these reasons, we hold that substantial evidence
supports the Board’s conclusion that the Administrator was
substantially justified in continuing to seek revocation and
require Knight to carry his burden of establishing his
accidental-ingestion defense.
C.
Finally, substantial evidence supports the Board’s
conclusion that the Administrator had substantial justification
“in law and fact,” Air Transp. Ass’n of Canada, 156 F.3d at
1332 (citation omitted), to seek revocation of Knight’s

16

certificates after the ALJ reduced Knight’s sanction from
revocation to a 90-day suspension.
As the Board explained during the EAJA phase, its
disagreement with the Administrator during the merits phase
over what the appropriate sanction should be does not ipso
facto undermine the Administrator’s position seeking
revocation such that Knight is entitled to an EAJA award. J.A.
638 (“[D]isagreement with the sanction does not mean that the
Administrator was not substantially justified.”); see also FEC
v. Rose, 806 F.2d 1081, 1087 & n.13 (D.C. Cir. 1986)
(explaining that “Congress’ intent,” in including the
“substantially justified” standard was to prevent “a prevailing
party” from “automatically . . . recover[ing] fees” under the
EAJA); accord LePage’s 2000, Inc. v. Postal Regul. Comm’n,
674 F.3d 862, 866 (D.C. Cir. 2012) (per curiam). That the
Board in its de novo review of the ALJ’s decision balanced the
aggravating and mitigating factors differently than the
Administrator is not enough to conclude that the
Administrator’s position seeking revocation of Knight’s
certificates lacked justification in law or fact.
The Administrator’s position that revocation was the
appropriate sanction was warranted in law. Pursuant to
governing agency guidance, the sanction of “revocation” is
“generally” warranted for a single act of an airman
“[p] erforming a safety-sensitive function with a prohibited
drug” in his or her system in violation of 14 C.F.R. § 120.33(b).
FAA Order 2150.3C, at 9-13–14 & Fig. 9-5(10). And given
that the Administrator’s choice of sanction was permissible
under applicable regulations, the Administrator reasonably
expected that the Board would defer to its choice of sanction.
See Martin v. Occupational Safety & Health Rev. Comm’n, 499
U.S. 144, 154–55 (1991) (denoting that the agency with
adjudicative power in a split-enforcement regime would play a

17

role similar to a “court in the agency-review context” and
review “only for consistency with the regulatory language and
for reasonableness” (emphasis omitted)); see also Pham v.
NTSB, 33 F.4th 576, 583 (D.C. Cir. 2022) (relying on Martin,
499 U.S. at 154–55) (holding that the National Transportation
Safety Board must defer to the Administrator’s “choice of
sanction,” unless it finds “that the sanction is unwarranted in
law or without justification in fact”).
The Administrator was also justified in fact in appealing
the ALJ’s order and seeking revocation. Importantly, Knight’s
own testimony established that Knight had reported to work to
perform a safety-sensitive function knowing that he had taken
his son’s Vyvanse and that Vyvanse was “a similar drug” to
amphetamine, but without either first disclosing that fact to his
employer or taking the initiative to ensure that the prohibited
substance was no longer in his system. J.A. 135. And as the
ALJ found, Knight had violated 14 C.F.R. § 120.33(b) by
reporting to work to perform a safety-sensitive function with a
prohibited drug in his system. Additionally, despite finding
Knight credible, the ALJ found that Knight had failed to prove
his accidental-ingestion defense by a preponderance of the
evidence. Given the evidentiary record and the ALJ’s findings,
the Administrator’s appeal to the Board seeking revocation of
Knight’s certificates was justified in fact.
Resisting this conclusion, Knight relies on non-
precedential ALJ decisions in which certificate holders had
proven their accidental-ingestion defense and, on that basis, the
ALJ reduced a revocation to a suspension. Petitioner Br. 21
(citing Henry, 2015 NTSB Lexis 17; Myers, 2020 NTSB ALJ
Lexis 1). In Knight’s view, the Administrator’s decision not to
appeal the reduced sanction in those adjudications makes the
Administrator’s position in his case unjustified. For three
reasons, we are unpersuaded.

18

First, the ALJ decisions that Knight relies on are
distinguishable. In both Myers and Henry, unlike here, the ALJ
found that the certificate holder had established their
accidental-ingestion defense by a preponderance of the
evidence. Henry, 2015 NTSB Lexis 17, at *19, *31 (finding
respondent “established his inadvertent consumption by a
preponderance of reliable, credible and probative evidence”);
Myers, 2020 NTSB ALJ Lexis 1, at *30–31 (similar).
Second, as the Administrator points out, ALJ decisions are
not precedential and so neither the Administrator nor the Board
were bound by them. Respondent Br. 29 n.7 (quoting 49
C.F.R. § 821.43, which provides that an ALJ decision is
binding only on the parties in that specific proceeding and
“shall not be binding precedent for the Board”).
Third, that the Administrator opted not to appeal the ALJ’s
decisions in Myers and Henry does not make the
Administrator’s position in this case inconsistent. There are
multitudes of considerations that go into an agency’s litigation
decisions and strategy, and we refuse to infer from the agency’s
decision not to appeal an ALJ ruling that it has adopted a policy
position on the merits. See Hastings v. Earth Satellite Corp.,
628 F.2d 85, 94 n.27 (D.C. Cir. 1980) (“The Director’s strategy
about what cases to appeal may result from myriad factors, e.g.,
allocation of staff attorney time, the amount in controversy in
a particular case, the prospects of settlement, and others.”);
Freeman v. U.S. Dep’t of the Interior, 37 F. Supp. 3d 313, 345
(D.D.C. 2014) (“The lack of any appeal of those unrelated ALJ
rulings was certainly not due to [the Department] agreeing with
or acquiescing in those decisions in a manner that would
suggest a changed agency policy being applied to the plaintiff
here.”).
* * *

19

We thus conclude that substantial evidence supports the
Board’s determination that the Administrator was substantially
justified in seeking revocation of Knight’s certificates
throughout the administrative proceeding.
IV.
For the foregoing reasons, we deny Knight’s petition
challenging the Board’s denial of his application for an award
of attorney’s fees and other expenses pursuant to the EAJA.
So ordered.