Court of Appeals Rules on Drug Screen Protocol

 - March 3, 2010, 9:21 AM

The FAA’s revocation of a pilot’s airman certificates because he “refused” a mandatory drug test could have implications for maintenance employees who are subject to FAA random drug testing. On February 25 the Court of Appeals ruled on the FAA’s revocation of Dr. Fred Pasternack’s airman certificates on the grounds that the Manhattan cardiologist refused to take a mandatory drug test. The NTSB upheld the revocation order and Pasternack brought it to the United States Court of Appeals, District of Columbia Circuit (Pasternack v. NTSB, Fred Leroy Pasternack, petitioner v. NTSB and FAA, respondents).

While the Court of Appeals granted Pasternack’s petition, vacated the Board’s decision and remanded it to the Board for further proceedings consistent with the opinion, it is still not clear that the NTSB is compelled to reverse its decision and order reinstatement of Pasternack’s certificates.

“The FAA revoked my airline transport pilot, flight instructor and ground instructor certificates. Then, as a result of that finding, the Aeromedical Branch subsequently terminated my aviation medical examiner status,” Pasternack told AIN.

While Pasternack is a pilot (he had been flying part time for Northeastern Aviation), the case also has implications for maintenance employees who are subject to FAA random drug testing. Compounding the issue, and with potentially far-reaching consequences, is the fact that Pasternack was a part-time employee, his instrument currency had expired three months previously and he was not qualified to fly when he was randomly selected for drug screening. From the NTSB’s position, airmen don’t necessarily have to be current or otherwise qualified to work to be randomly selected if they are still on a company’s roster.

In June 2007 Northeastern notified Pasternack that he had been randomly selected for drug testing as required by DOT regulations. Pasternack reported to a LabCorp collection site but was unable to provide a sufficient quantity of urine for the test. It is a fairly common occurrence and is taken into consideration under 49 C.F.R. 40.193 as a “shy bladder” procedure. According to the regulation, the individual is required to remain at the collection site for three hours or until a sufficient specimen is provided. Accordingly, Theresa Montalvo, the collector, told Pasternack to remain in the waiting room until he could provide another specimen.

“I realized it wasn’t going to happen in time for me to make a meeting so I told the collector I had to go but would return. She asked me when I would be back and I told her the next morning,” Pasternack said.

At that point Pasternack returned to his office, had a meeting and about three hours after having left the lab, he realized he would be able to give the necessary sample.

“I’m only five minutes away from the lab so I figured I’d just go back rather than wait until the next day. I gave them a sufficient amount of urine and it tested negative. She reported it on the form and included the comment that said I’d left, which the inspector subsequently deemed as a refusal,” he said.

It is undisputed that Montalvo did not advise Pasternack that his departure from the testing facility would be deemed a refusal. “If I’d been told that, I would have remained at the site,” Pasternack said. “I got the acquiescence of the collector, she kept the form open and when I returned she used the same form. By regulation if she’d deemed me a refusal she’s required to terminate it. So the ruling was made despite the fact that the collector did not deem it a refusal.”