Fred Leroy Pasternack v. National Transportation Safety Board and Federal Aviation Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 22, 2010 Decided February 26, 2010
No. 09-1139
FRED LEROY PASTERNACK,
PETITIONER
v.
NATIONAL T RANSPORTATION SAFETY BOARD AND FEDERAL
AVIATION A DMINISTRATION ,
RESPONDENTS
On Petition for Review of an Order
of the National Transportation Safety Board
Kathleen A. Yodice argued the cause and filed the briefs
for petitioner.
James F. Conneely, Attorney, Federal Aviation
Administration, argued the cause and filed the brief for
respondent. Susan Caron, Attorney, entered an appearance.
Before: GINSBURG, B ROWN, and KAVANAUGH , Circuit
Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH .

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KAVANAUGH , Circuit Judge: The Federal Aviation
Administration revoked Fred Pasternack’s airman certificates
on the ground that Pasternack refused to take a mandatory
drug test. The National Transportation Safety Board upheld
the revocation order. Because a key finding on which the
Board relied was not supported by substantial evidence, we
grant the petition, vacate the Board’s decision, and remand for
further proceedings consistent with this opinion.
I
Dr. Fred Pasternack was a part-time pilot with
Northeastern Aviation. In June 2007, Northeastern notified
him that he had been randomly selected for drug testing; such
random drug testing was required by Department of
Transportation regulations. Pasternack reported to a LabCorp
collection site but was unable to provide a sufficient quantity
of urine for the test. This is not an uncommon occurrence,
and for such situations, the Department has adopted “shy
bladder” procedures. See 49 C.F.R. § 40.193. Under the
regulations, Pasternack was required to remain at the
collection site for three hours or until he provided a sufficient
specimen. See id. The collector, Theresa Montalvo, told
Pasternack to remain in the waiting room until he could
provide another specimen. Pasternack apparently had a
scheduled business-related meeting and told Montalvo he
needed to leave the collection site. He left and returned a few
hours later, at which time he provided a sample that tested
negative for drugs. Pasternack claimed to have left the
collection site with Montalvo’s acquiescence after spending
several minutes in the waiting room. See Transcript of NTSB
Hearing at 424-26, Adm’r v. Pasternack, Docket No. SE-
18133 (July 30-31, 2008) (Hearing Tr.) (J.A. 281-83).
Montalvo, however, testified that Pasternack “rushed out of
the facility” while she was attempting to explain the

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collection procedures to him. Id. at 78 (J.A. 68). Although
Montalvo herself apparently did not view Pasternack’s
departure as a refusal to take the test (given that she allowed
him to take the test when he returned), a medical review
officer concluded that Pasternack’s failure to remain at the
testing site meant that he had technically refused a drug test
for purposes of the Department of Transportation regulation.
Id. at 120 (J.A. 100); see 49 C.F.R. § 40.191(a)(2). The
penalty for refusing to take a test is naturally harsh: The
Federal Aviation Administration issued an emergency order
revoking Pasternack’s airline transport pilot and flight
instructor certificate and his ground instructor certificate.
Pasternack appealed the FAA’s order to the National
Transportation Safety Board. The case was initially heard by
an Administrative Law Judge, who affirmed the revocation
order. The Board, in turn, affirmed the ALJ’s decision. See
Adm’r v. Pasternack, NTSB Order No. EA-5443 (Apr. 27,
2009) (J.A. 394).
As an initial matter, the Board observed that Pasternack’s
undisputed conduct – the fact he had “left the test site without
providing an adequate urine sample and before the testing
process had been completed” – qualified as a refusal under the
plain language of § 40.191(a)(2). Id. at 11 (J.A. 404). The
Board then considered Pasternack’s “exculpatory
justifications for his refusal,” including his claim that no one
told him leaving would constitute a refusal. Id. at 12 (J.A.
405). The Board rejected that claim, finding that the ALJ had
made an “implicit . . . credibility determination” against
Pasternack and that “the preponderance of the
evidence . . . demonstrates that [Pasternack]’s own behavior at
LabCorp precluded the LabCorp test administrator from
explaining . . . that [Pasternack’s] departure from the
facility . . . would constitute a refusal.” Id.

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Pasternack petitioned this Court for review of the Board’s
decision pursuant to 49 U.S.C. § 1153. He contends, among
other things, that the Board erred in finding that his conduct
amounted to a refusal of a drug test.1
II
We review NTSB decisions under the arbitrary and
capricious standard and treat the Board’s factual findings as
“conclusive” if they are supported by substantial evidence.
See 5 U.S.C. § 706(2)(A); 49 U.S.C. § 46110(c); Garvey v.
NTSB, 190 F.3d 571, 577 (D.C. Cir. 1999). However, “we
may uphold agency orders based only on reasoning that is
fairly stated by the agency in the order under review.” Casino
Airlines, Inc. v. NTSB, 439 F.3d 715, 717 (D.C. Cir. 2006)
(quoting Williams Gas Processing–Gulf Coast Co. v. FERC,
373 F.3d 1335, 1345 (D.C. Cir. 2004)); see SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947). Therefore, “[i]f there is no
substantial evidence to support the Board’s reasoning . . . its
order must be vacated.” Van Dyke v. NTSB, 286 F.3d 594,
598 (D.C. Cir. 2002).
It is undisputed that Montalvo, the collector in this case,
did not advise Pasternack that his departure from the testing
facility would be deemed a refusal. See Hearing Tr. at 79
(J.A. 69).2 According to Pasternack, if he had been told that
1 Pasternack also contends that he was not eligible for random
drug testing in June 2007 because he was “not current or qualified
to perform as a pilot.” Pasternack Br. at 3; see 14 C.F.R. §
120.105. Because we vacate the NTSB’s decision on other
grounds, we need not consider that argument.
2 The Department of Transportation’s Urine Specimen
Collection Guidelines instructed collectors to give that warning.
See OFFICE OF DRUG & ALCOHOL P OLICY & COMPLIANCE , U.S.

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his leaving would constitute a refusal, he “would have
remained at the site.” Id. at 442-43 (J.A. 292-93). Pasternack
contended that the fact he was not told the consequences of
his leaving for a few hours qualified as an “exculpatory
justification” for his actions. The Board rejected that
justification on the ground that Pasternack’s “own
behavior . . . precluded” Montalvo from telling him that his
departure would constitute a refusal. The Board also invoked
the ALJ’s “implicit . . . credibility determination” against
Pasternack and in favor of Montalvo. Pasternack, NTSB
Order No. EA-5443, at 12 (J.A. 405).
In our view, the Board’s reasoning on this point was not
supported by substantial evidence. To be sure, we must
respect “reasonable credibility determinations” of the ALJ
that have been “expressly approved” by the Board.
Throckmorton v. NTSB, 963 F.2d 441, 444 (D.C. Cir. 1992).
In this case, however, the ALJ made no credibility
determination – express or implied – with respect to
Montalvo’s assertion that she didn’t have an opportunity to
fully explain the “shy bladder” collection procedures to
Pasternack before he left the facility. Hearing Tr. at 78 (J.A.
68). The ALJ’s findings of fact simply did not address that
factual issue.
DEP’ T OF T RANSP., URINE S PECIMEN COLLECTION GUIDELINES 18,
20 (2006) (“when the employee does not provide a sufficient
amount of urine,” the collector “must specifically tell the employee
that he or she is not permitted to leave the collection site and if they
do so, that it will be considered a refusal to test”). Department of
Transportation regulations provide that a “collector in the DOT
drug testing program . . . must be knowledgeable about . . . the
current ‘DOT Urine Specimen Collection Procedures Guidelines.’”
49 C.F.R. § 40.33(a).

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Moreover, even assuming the ALJ had made a credibility
determination that Montalvo’s testimony was entirely truthful
and accurate, it still would not support the Board’s conclusion
that Montalvo was “precluded” from telling Pasternack the
consequences of his leaving. On the contrary, even if
Pasternack left the facility in a rushed manner, it is utterly
implausible that Montalvo had no opportunity to tell
Pasternack that his leaving would be deemed a refusal. At
oral argument before this Court, the Government’s counsel
acknowledged that it would have taken no more than a few
seconds for Montalvo to convey that crucial piece of
information. See Tr. of Oral Arg. at 17-18. After all, how
long would it have taken to say, “If you leave, that will
constitute a refusal to test”? Moreover, Montalvo herself
testified that after Pasternack said he needed to leave, she had
an opportunity to tell him she would have to notify his
employer, and that Pasternack heard and responded to that
statement. Id. at 63-64 (J.A. 57-58).3 Yet Montalvo did not
take advantage of that opportunity to give Pasternack the far
more important warning that his leaving would constitute a
refusal. In light of Montalvo’s own testimony, no substantial
evidence supports the Board’s conclusion that Pasternack’s
behavior “precluded” Montalvo from informing him that his
leaving would be considered a refusal.
Because the Board expressly relied on its finding that
Montalvo was “precluded” from warning Pasternack that his
3 The Board stated, in summarizing the evidence, that in order
to convey this information, Montalvo “called after” Pasternack “as
[he] was leaving.” Pasternack, NTSB Order No. EA-5443, at 6
(J.A. 399). Montalvo, however, did not testify that she had to “call
after” Pasternack. See Hearing Tr. at 63-64 (J.A. 57-58) (“A. He
grabbed his ID. And I told him I would have to notify the
employer. Q. What was his response to that? A. He said, fine. Q.
And what happened after that? A. He walked out.”).

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leaving would constitute a refusal and because that finding is
not supported by substantial evidence, we must vacate the
Board’s decision.4 In so doing, we do not purport to say that
the Board was required to consider Pasternack’s “exculpatory
justification”; it may be that 49 C.F.R. § 40.191(a)(2) is a
strict liability provision. But the Board having entertained
Pasternack’s “exculpatory justification,” and having rejected
it on a ground not supported by substantial evidence, we are
constrained to vacate the Board’s decision. See Chenery, 332
U.S. at 196.
* * *
We grant Pasternack’s petition, vacate the Board’s
decision, and remand to the Board for further proceedings
consistent with this opinion.
So ordered.
4 The FAA suggests that the Collection Guidelines may not
have been binding on Montalvo because they did not appear in the
regulations themselves. See FAA Br. at 40. The FAA also
contends that because he had been trained as a medical review
officer, Pasternack “should have been familiar with the requirement
that an employee may not leave the collection site during a random
drug test.” Id. at 40 n.37. We cannot deny the petition on those
grounds: Under “well-established Chenery principles,” we cannot
uphold the Board’s decision on a basis not relied upon by the
Board. Chirino v. NTSB, 849 F.2d 1525, 1532 n.10 (D.C. Cir.
1988).

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