NTSB - Denial of Medical Certification: Options

 

 

INFORMATION MEMORANDUM IN CASES ARISING UNDER
SECION 44703(C) FORMERLY 602(b) OF THE FEDERAL AVIATION ACT
OF 1958, AS AMENDED

Denial of Medical Certification

It is hoped that the following information will enable a pilot to recognize which course of action to follow in filing a petition for review with the National Transportation Safety Board (Safety Board) from a denial of medical certification by the Federal Aviation Administration (FAA). Also, it is hoped that a pilot, after reviewing this memorandum, will recognize which, if any, category of disqualifying medical condition or conditions his or her case falls in and its concomitant burden of proof. Recognition of the course of action and the category will promote a just, fair and speedy adjudication of the pilot's case.

In any medical proceeding or case arising under 49 U.S.C. Section 44703(c) formerly Section 602(b) the Federal Aviation Act of 1958, as amended, there are two courses of action available to a pilot who has been denied medical certification by the FAA.

THE FIRST ALTERNATIVE is available to the pilot who believes that he or she is entitled to a medical certificate as a matter of right. If a pilot believes that he or she is qualified for a medical certificate according to the medical regulations of the FAA (Federal Aviation Regulations, FAR, specifically Part 671), the pilot should immediately have that determination made by the Office of Administrative Law Judges, National Transportation Safety Board. It is within the statutory power of the Office of Administrative Law Judges and the Members of the Safety Board to determine if a pilot is entitled to medical certification as a matter of right. The determination can be promptly adjudicated if the pilot informs the Office of Administrative Law Judges that he or she is seeking a review of denial of medical certification because he or she feels it is his or her right to have the medical certificate, and that this is the course of action he or she prefers to take. Most important here is that the pilot must file the petition for review with the Office of Administrative Law Judges, LJ-1, National Transportation Safety Board, Docket Section, Room 5531, Washington, D.C., 20594 within 60 days from the date the FAA advises the pilot that his or her application for a medical certificate is denied.

THE SECOND ALTERNATIVE is for the pilot who has been denied medical certification to request a special issuance certificate from the appropriate medical regulation or regulations which prohibited the issuance of the medical certificate to the pilot. "Special Issuance" from the Federal Aviation Administration are solely within the jurisdiction of the FAA. Therefore, any request for special issuance sent to the Safety Board cannot be accepted because the Safety Board has not been given statutory authority from Congress to grant or deny a request for a Special Issuance. A pilot may file a request for special issuance with the FAA and can, at the same time, file a petition with the Safety Board (as discussed in Alternative No. 1). A request for Special Issuance should be directed to:

When and if a pilot requests the Board to hold a petition for review in abeyance pending a request for a Special Issuance filed with the Federal Aviation Administration, that Petition can only be held by the Board 180 days from the date the FAA denied the pilot's application for medical certification. Pilots must review the Board's Rules of Practice, specially Section 821.24(d) in order to specifically protect their right to a hearing before the Board in this instance.

CATEGORIES OF DISQUALIFYING MALADIES
THE ADMINISTRATIVE LAW JUDGES MUST DEAL WITH IN PROCEEDINGS
BEFORE THE SAFETY BOARD

There are two categories of disqualifying conditions with which the Administrative Law Judges of the Safety Board must deal in medical proceedings before the Board.

The FIRST TYPE is a specifically disqualifying condition under Part 67 of the FAR. Section 821.25 of the Board's Rules of Practice places the burden of proof on the pilot in any proceeding under Section 44703(c). This means that the pilot must prove to the Administrative Law Judge who hears the case that he or she does not have a medical history of the specifically disqualifying conditions or that the diagnosis/condition was erroneous. For the pilot to prove only that he or she has recovered from the condition does not satisfy the burden of proof. An uncontroverted clinical diagnosis of the specifically disqualifying condition leaves the Administrative Law Judge no alternative but to affirm the FAA's denial of medical certification. The FAR is clear: once a history or clinical diagnosis of a specifically disqualifying condition is established, medical certification as a matter of right does not exist. (See the list of specifically disqualifying conditions.)

The sole question in this type of hearing is whether or not the pilot actually does not have or has ever had the medical history or condition alleged by the FAA. To meet the burden of proof, the pilot must prove to the Administrative Law Judge that there was an error in the diagnosis or that he or she has no history of the medical condition: that is, that the condition cited by the FAA has never existed and does not currently exist. Whatever evidence that pilot offers at the hearing in attempting to satisfy the burden of proof that he or she does not now and never did have the medical condition, the FAA will undoubtedly offer expert medical testimony and documentary evidence to support its position. It is imperative then, that the pilot be prepared to present at the hearing expert medical testimony along with any other medical evidence that will help to support his or her case. A lawyer, although not required, is advised. The testimony of a doctor or medical expert is of utmost importance in meeting the burden of proof.

Once one of the disqualifying conditions is established, the applicant is disqualified from being eligible for a medical certificate through the application route. Subsequent improvements in the disqualifying conditions cause no difference in eligibility. The only means for certification if the disqualifying conditions have been established is through the Special Issuance route in accordance with section 67.19 of the FAR's. It is completely the authority of the FAA either to grant or deny a "Special Issuance Certificate." If a request for a Special Issuance is denied, there is no administrative appeal right open to a pilot, the only administrative course of action would be for the pilot to wait a substantial period of time and make another request to the FAA for a Special Issuance Certificate. Requests for Special issuance can be in the form of a letter, and should include the correct return address of the pilot and a current telephone number for the pilot, if possible.

The SECOND TYPE of condition poses a general risk question to the Administrative Law Judge. Unlike the first type of case, this proceeding does not involve a specifically disqualifying medical condition on the part of the pilot. The FAA denies the pilot a medical certificate because of a medical condition which allegedly makes the pilot an unacceptable risk to air safety. The burden of proving that the condition does not exist is still on the pilot, but the pilot must only prove to the Administrative Law Judge that, despite this medical condition, the pilot is able to safely perform and exercise the privileges of the certificate held or applied-for. Since the pilot's medical condition does not statutorily prohibit the issuance of a medical certificate to a pilot, the general risk question will be answered through a hearing of the case by an Administrative Law Judge of the Safety Board.

Pilots are entitled to copies of all medical reports and records pertaining to them which have not been previously furnished to them by the FAA and which will be introduced into evidence at a Safety Board hearing by the FAA. Pilots can request a copy of the medical exhibits by writing the Enforcement Proceeding Branch, AGC-310, Federal Aviation Administration, Washington, DC 20591, (202) 267-9956.

Pilots who have decided to request the Safety Board to review the denial of medical certification and give them a hearing should advise the Safety Board as soon as possible after their petition is filed and has been acknowledged by the Safety Board of the location (city and state) they prefer for the hearing to be held. The Administrative Law Judge will set the hearing in any city the pilots selects as long as there are courtroom facilities and major air transportation in the city.

Most hearings of this nature run about 6 hours. About 25 days after the hearing, an official transcript of the hearing is mailed from the Safety Board Docket Section to the pilot or his or her attorney and the FAA representative. Currently there is no charge for the transcript of the hearing.

Any other questions regarding procedures or format for filing a petition with the Safety Board should be directed to the office of Administrative Law Judges, Attention: Pamela McKenzie, National Transportation Safety Board, Room 5531, Washington, DC 20594.

1 See Part 67 of the Federal Aviation Regulations. (Please review carefully).
2 See 67.19, Special Issuance in Amendment 67-11.
 
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