FAA Must Review Pilot Drug Test Refusal Determinations

United States Court of Appeals FOR THE DISTRIC T OF COLUM BIA CIRC UIT Argued October 21, 2025 Decided February 27, 2026 No. 24-1348 R YAN J. P AUL, P ETITIONER v. F EDERAL A VIATION A DMINISTRATION, R ESPONDENT 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 Assist ant Atto rney General, Brett Shumate, Assistant Attorn ey General, and Courtney Dixon, Attorney. Before: C HILDS and G ARCIA, Circuit Judges, and R ANDOLPH, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge G ARCIA.

2 Concurring opinion filed by Senior Circuit Judge R ANDOLPH. G ARCIA, Circuit Judge: Federal law requires private airlines to conduct random drug te sting of their pilots and to report any pilot’s refusal to test to the Fede ral 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 indepe ndently review an ai rline’s determination that one of its pilots refused to test. We hold that it mu st. 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 empl oyers without an y 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 fro m its own procedures. I A Congress has instructed the F AA to “promote safe flight of civil aircraft” by prescrib ing regulations “necessary for safety in air commerce.” 49 U.S. C. § 44701(a)(5). To that end, the FAA requires pilots to hold two certificate s: a medical certificate and an airman certi ficate (also ca lled a pilot certificate). See 14 C.F.R. §§ 61.3(a), (c), 61.23(a). Congress has also instructed th e FAA to, “[i]n the interest of aviation safety,” “prescribe regulations that establish a program requiring air carriers . . . to conduct . . . random . . .

3 testing of airmen. .. for the us e of a controlled substance.” 49 U.S.C. § 45102(a)(1). Accordi ngly, 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 conduc ted 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, a s determined by the employer,” the pilot is cons idered 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 hol ds [a medical or airman certificate] who has refused to subm it to a drug test.” 14 C.F.R. § 120.111(d). Upon receiving su ch notice, the FAA’s Drug Abatement Division open s an investigation. See Respondent’s Brief 7; see also 49 U.S.C. § 44709(b)(1)(A). “[A]fter conducting” that “investigati on,” 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 pi lot’s certificates, the pilot can appeal to the National Tran sportation Safety Board. See 49 U.S.C. § 44709(d). Beyond the possible loss of the pilot’s certific ates, a test refusal carries several ad ditional 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 “ev aluation” by a substance abuse professional, followed by “tre atment,” “education,” “re-

4 evaluation,” and “follow-up test ing” as the s ubstance abuse professional may require. See 49 C.F.R. §§ 40.281–40.311. Second, a test-refusal determin ation immediately prohibits the holder of a med ical certificate fro m performing sa fety- sensitive duties until he also se cures a new medical certificate that is issued “after the date of the... refusal to test.” 14 C.F.R. § 120.113(d)(2), (4). Rela tedly, “[t]o be eligible for” a new medical certificate, the pilot must not have “refus[ed] to submit to a drug... test” “w ithin the preced ing 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 employe r must “report” such refusal to an FAA-run database called the Pilot Records Database. 14 C.F.R. § 111.220(a)(1), (c); see als o 49 U.S.C. § 44703(i)(4)(B). Prospective employers “shall access an d evaluate” an individua l’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 public ly available. See 14 C.F.R. §§ 111.1, 111.15. And “[n]o” prospective employers “may retrieve record s” 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 airlin e. Amerijet, as required by law, conducts random drug testing on its pilots. On March 20, 2024, Paul—off-dut y 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 fo r duty the followin g

5 month. But he “was prevented from doing so due to a severe sinus infection.” J.A. 61. On April 2, 2024, Amerijet info rmed Paul that it had activated him for duty and selected him for a random drug test. Amerijet requested that Paul repo rt 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 tha t Paul had refused a required drug test. On April 4, 2024, Amerijet notifi ed 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-r efusal 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 info rmation 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, Pa ul 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.

6 Second, on August 27, 2024, the Drug Abatement Division sent Paul another le tter, this time stating: We have concluded our i nvestigation 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 agai nst you in connection with your refusal to sub mit to testing but have referred this matter to the FAA’s Office of Aerospace Medicine. In accordance with 49 CFR § 40.285, an indivi dual who refuses to submit to any DOT test cannot perform any DOT safety-sensitive du ties for any employer until the individual has completed the Substance Abuse Professional (SAP) evaluation, referral, an d 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/F AA 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

7 pursuing legal enforcement action regarding this matter and no ted the retu rn-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 F AA’s “finding” that Paul “refused to submit” to a drug test, (2) “affirm[ing] the FAA’s determination not to seek enforcement ac tion,” (3) compelling the FAA to “remove all records re flecting” Paul’s test-refusal status from the Pilot Records Da tabase, and (4) directing “the FAA to advise Amerijet” Paul did not refus e 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 re view 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 a ssure 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

8 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 affidav it or other evidence.” Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002). There is ordinarily “little que stion” 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 fu ture “economic damage from the loss o f his fi rst-class medical certificate for two years.” Petitioner’s Brief 19 (citing 14 C.F.R. §§ 67.101, 67.107). “Assum[ing]” Paul “wil l prevail on the merits,” LaRoque v. Holder, 650 F.3d 777, 785 (D.C. Cir. 2011), that injury stems from the F AA’s failu re to review Amer ijet’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 E mp. Council of Greater Washington, Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1273 (D.C. Cir. 1994) (internal quot ation 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 th at [the plaintiffs] would ever return [to their employer] as bona fide job seekers”). Specifically, Paul’s petition s eeks relief to mitigate th e “devastating short . . .-term impacts on his aviation career.” Petitioner’s Brief 35 (emphasis adde d). An exhibit attached to the petition shows that Paul had been a pilot—and had no employment outside avia tion—since at least 2017. See J.A. 30. Paul’s counsel, moreove r, has represen ted that Paul has completed at least the initial steps of the r eturn-to-duty process, a further indication Paul seeks to resume flight duties.

9 See Tr. of Oral Arg. 33; Petitione r’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 asid e” the FAA’s “finding” that he “refus[ed] to submit to tes ting” 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 cl aims 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 partie s point to no statutory or regulatory provision that directly addresse s the question. But the FAA’s internal guidance can be read to require FAA review of an employer’s test-refusal deter mination. And that r eading is necessary to avoid serious consti tutional questions raised by the FAA’s litigation position. We accordingly hold that the FAA arbitrarily and capriciously de parted from its guidance by failing to review the test-refusal dete rmination. A Neither the relevant statut es nor regulati ons speak to whether the FAA must (or must not) review an employer’s test- refusal determination. Start with the statutes. The only potentially relev ant statutory provision brought to our attention gives the FAA discretion to “delegate to a qua lified private person” matters “related to” the “examination, te sting, 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

10 a private person under this subsection” to “apply for reconsideration of the acti on by the Administrator.” Id. § 44702(d)(3). But the parties ag ree that “[a]n employer’s drug testing program is not a delegati on relating to the issuance of certificates,” and so Section 44702(d) does not “authorize[] the FAA to review the employer’s repo rt of refusal.” Respondent’s Post-Argument Letter 3; see also Petitioner’s Post-Argument Letter 4 (“[W]e agree with the FA A that this provision applies to FAA-issued certificat es and is inapplicable to the is sues in this petition.”). We assu me w ithout 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 rev iew an employer’s determination that an employee refused a drug test. See Respondent’s Brief 19. We are not persuaded. The first provision simply st ates 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 emphasize s, that provision states that, with exceptions not relevant here, making a test-re fusal determination is “a non-dele gable duty of the actual employer.” 49 C.F.R. § 40.355(i). But the FAA utterly ignores the surrounding context. That re gulation 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 fro m “mak[ing] a determination that an employee has refused a drug or alcohol test,” before

11 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 in itial test-refusa l determination to service agents. It has no b earing 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 p rocedures for the FAA’s Drug Abatement Division “to follow when assessing drug . . . testing pr ograms” 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 th e Handbook requires the FAA to review an employer’s test-re fusal 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 invest igations “is to determine whether a finding of noncomplia nce exists and warrants the need for compliance action.” Handbook at 53 ¶ 2. This language appears to assign th e Drug Abatement Division two distinct responsibilities: (1) determining whether noncompliance (e.g., test refusal) exists, and (2) evaluating whether subsequent compliance ac tion is warranted. The language is therefore difficult to reconcile with the FAA’s argument that the agen cy is ta sked only with “determin[in g]

12 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.” Th at word connotes an unproven fact and, unlike other words the manual might have used (perhaps “determination” or “finding”), suggests furth er evaluation will occur. See Allega tion, Black’s Law Dictionary (12th ed. 2024) (“a statemen t, not yet proved”). Third, the Handbook states that “[i]nvestigatio ns of an employee may only result in lega l enforcement action or no action.” Handbook at 55 ¶ 5. “[N]o action,” when read in conjunction with the two aforenot ed textual clues, plausibly reflects a review and rejection of an employer’s “allegation.” Indeed, courts frequently desc ribe 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 th at is far from unambiguous. Like the statutes and regu lations, the Handbook does not say directly, one way or the other, whether the FAA will review an employer’s test-refusal determina tion. But we need not decide whether Paul’s is the best or onl y plausible in terpretation of the Handbook. Per the constitutional avoidance canon, if on e reading will raise “serious c onstitutional doubts” and another “plausible” reading will not, we will adopt the latter. Clark v.

13 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 constituti onal difficulties entailed by reading” it more broadly). Here, the FAA’s litigation position—that it is not required or even authorized to re view employers’ test-refusal determinations in these circumstances—rais es serious constitutional concerns unde r the private nondelegation doctrine. Generally, if the government delegates authority to a private entity, the government must “retain[] the ultimate authority to approve, disappr ove, or modi fy” the private entity’s “actions a nd decisions on delegated matters.” Hight v. DHS, 135 F.4th 996, 1009 (D.C. Ci r. 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 pow er”). We have accordingly held that a Securities and Exchange Commission (SEC) “regulatory scheme” likely of fended the private nondelegation doctrine by allowing the Fi nancial Industry Regulatory Authority (a private corporati on) to, “without any SEC review of its decision on the merits, e ffectively 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 re fused 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

14 [entities] any authority to impos e disciplinary sanctions.” Respondent’s Supplemental Brie f 11. On the FAA’s telling, that is because “[i]t is the FAA, not the priv ate air carriers, that ultimately determines whether to take enforcemen t action against a pilot’s airman certificates.” Id. at 12. But the FAA neglects the other consequences that flow directly fro m an employer’s test-refusal d etermination. As this case illus trates, such a determination is reported to th e 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-s ensitive duty” for any employer until the pilot completes the retu rn-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 obs erving these “serious constitutional doubts,” we do not resolve whether the FAA’s position indeed violates the pr ivate nondelegation doctrine. Martinez, 543 U.S. at 381. We hold only that Paul’s “plausible interpretation” of the Handbook shou ld be adopted in light of the “constitutional difficu lty” 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 bas is that the FAA arbitrarily and capriciously de parted from its own intern al 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 th e 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 circumstan ces, “nonlegislative rules [may have] binding effect against an agency.” Kristin E. Hickman &

15 Richard J. Pierce, Jr., Adminis trative Law Treat ise § 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) (co llecting cases). For example, in Morton v. Ruiz, 415 U.S. 199 (1974), the Supreme Court held that the Bu reau 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 e ntitlement of... otherwise eligible beneficiaries, it must comply, at a minimum, with its ow n internal procedures.” Id. at 235. Relying on Ruiz, this court has held that a requirement contained only in a memorandu m of understanding between two agencies constrained the agencies’ ability to revoke a conditionally-ap proved 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 agen cy rules are enforceable agains t agencies in limited circumstances. See Alcara z 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 determina tions. Declining to enforce that requirement against the F AA and leaving the test-refusal determination entirely to the di scretion of private employers would raise severe constitutiona l concerns. Because the FAA concedes that it did not fo llow that requirement, we remand for the agency to follow its ow n procedures and conduct the necessary review. In doing so, we do not prescribe what

16 procedures the FAA must foll ow 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 tha t Paul refused a mandatory drug test under fe deral 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 fo r us to resolve that [issue] in the first in stance.” 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 provi sion states that “[a] person adversely affected by an order of the Administrator under this section may appeal the order to the Nationa l Transportation Safety Board.” 49 U.S.C. § 44709(d). And an order under “this section” is one “amending, modifying, suspending, or revokin g... 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 t o 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 th us arguably would be appealable

17 IV The petition for review is gran ted in part, and the case is remanded to the FAA for proceedi ngs not incon sistent with this opinion. So ordered. to the Board. Although we note this issue for the parties’ benefit, we do not resolve it here.

R ANDOLPH, Senior Circuit Judge, concurring: I agree t hat the “ord er” o n ju dicial review is th e let ter 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 c hristens the Division’ s letter a s a “No Action” letter. Given this description, one versed in federal administra tive law w ould naturally thin k this is a routin e exercise in prosecutorial discretion and thus immune from judicial r eview. See Heckler v. Chane y, 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 answ er is that “No Action” is a misnomer, and the agency knows it. The FAA’s announcement that it would not take enfo rcement action against Paul was not entirely passive. It triggere d another FAA action adversely affecting him. This impact not only allows us to review the FAA’s decision. It has striking i mplications for Pa ul’s rights on remand which ne ither 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 collea gues desig nate it, but more specific ally, it wa s “an order amending, modifying, suspending, or re voking – 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 th e letter - order to the National Transportation Safety Board. 49 U.S.C. § 44709(d). Such “appeals” consist of “some kind of hea ring” 1 before an Administrative Law Judge, with no defer ence to the FAA’s initial fact findings, and a potential review of the ALJ’s 1 S ee Hen ry J. Fri e ndl y, Some Kind of Hear ing, 12 3 U. P A. L. R EV. 1267, 1267-68 (1975).

2 decision by NTSB. Id; see, e.g., Pham v. Nat’l Transportati on 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 typ e of “orde r” just described, and that Paul was therefore not entitled to a hearing b efore t he NTS B. Th ey are mis taken. T he same fa ct that t akes the l etter out of the realm of prosecutorial discretion makes it a ppealable to the N TSB: The lette r, by accepting his employer’s refusal report, had an immediate impact on Paul’s medical certi ficate. FAA regu lations esta blish that: “T o be eligible for a firs t - class ai rman medical cert ificat e, and to remai n el igi ble for a first - clas s airman medic al cert ificat e, a pers on m ust m eet the requirements of this subpart.” 14 C.F.R. § 67.10 1. Another regulation, 14 C.F.R. § 67.107, list s 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 requir ed by the U.S. D epartment 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 eligibl e,” Paul complains that the FAA’s decision to accept his employer’s decision a utomatica lly revoked his medical c ertificate. What h e does no t app reciat e is th at on his v iew, th e let ter w as an “ord er. . . revokin g .. . a certif icate” and t hus was ap pealab le to t he NTSB pursuant to 49 U.S.C. § 44709(d). The FAA Division’s letter itse lf states, consistent w ith the re gulations quote d 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.

3 Put another way, the FAA’s letter- order, by accepting and recognizing as final the employer’s de termination that Paul refused testing and thus rendering his certifi cate insufficient to permit him to pe rform sec urity - sensitive duties, modified his medical certi ficate. Reg ardless of wh at lab el bes t fi ts, t he fact remains th at this letter impacted all o r part of his medical certificate. 49 U.S.C. § 44709(b)(1), (d) (orders issued under “this section ” inclu de orders aff ectin g “any part of a cert i fic ate issued under this chapter”). The lett er - order clearl y qu alified as an appe alab le order pursuant to 49 U.S.C. § 44709(d). As such, I se e 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]h e rule of ‘construing’ to avoi d constitutiona l doubts should, in my view, be confined to cases w here the doubt is exceedingly real. Otherwis e this rule, whether it be denominat ed one of statutory in terpretation or, more ac curately, of constitutiona l adjudication – still more accurately, of constitutiona l nonadjudication – is likely to beco m e one of evis ceration an d tergiversation.” H enry J. F riendly, Mr. Justice Frank furter and t he Reading of Statutes, in B ENCHMARKS 211- 12 (1967). 3 There appears to a bit of “t ergiversa tion” (se e note 2) goi ng on in the majority opinion, although, t o its credit, the opinion acknowledges as muc h. Maj. Op. 14. The FAA H andbook does no t say that the Divis ion has the “ responsibility” of “determining whether noncompliance (e.g., test refusal) exists.” Ma j. Op. 11. It says instead t hat the Div ision is to deter mine wheth er there ha s been a “finding” o f “noncompl iance.” Handbook p. 53 ¶ 2. That is consistent with FAA ’s contention that it is entirely up to the employe r to det ermine w hether a pilot refu sed to be tested. So, t his portion of the H andbook i s not — as the majority opinion states — “the refor e difficu lt to re concile ” wi th the FAA ’s po sit ion th at the

4 the NTSB, which has the power to “a pprove, 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 F AA. While I would prefer that we instruct the parties that Paul could a ppeal the letter - order without further ado, there can be no doubt that Paul will be entitle d — 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 f inal word. Maj. Op. 11. A ctually, it is qu ite easy to reconcile with the agency’s position.