[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15409 ELEVENTH CIRCUIT
MAY 26, 2009
________________________
THOMAS K. KAHN
CLERK
NTSB No. -EA-5400
FAA No. SE-18092
JEFFREY R. SWATERS,
Petitioner,
versus
LYNNE A. OSMUS, Acting Administrator,
Federal Aviation Administration,
Respondent.
________________________
Petition for Review of an Order of the
National Transportation Safety Board
_________________________
(May 26, 2009)
Before MARCUS and PRYOR, Circuit Judges, and SCHLESINGER,* District
Judge.
*
Honorable Harvey E. Schlesinger, United States District Judge for the Middle District
of Florida, sitting by designation.
MARCUS, Circuit Judge:
Appellant Jeffrey Swaters, a pilot formerly employed by Spirit Airlines, had
his pilot and medical certificates revoked by the Federal Aviation Administration
(“FAA”) after failing a random drug test. The FAA’s decision was upheld by an
administrative law judge (“ALJ”), whose ruling was in turn affirmed by the
National Transportation Safety Board (“NTSB” or “the Board”). Swaters petitions
for review of the NTSB’s decision in this Court. After thorough review, we affirm
the NTSB’s decision and deny Swaters’s petition.
I. FACTUAL BACKGROUND
The essential facts in the case are these. Swaters had been employed as a
pilot by Spirit Airlines since 1999. On the evening of February 25, 2007, he
arrived in San Juan, Puerto Rico during the course of a four-day trip. He spent the
evening alone and met the rest of his crew -- his first officer and three flight
attendants -- the following morning, February 26, 2007, at 4:55 a.m. On that day,
Swaters and his first officer made flights from San Juan to Orlando, Florida; from
Orlando to Fort Lauderdale, Florida; from Fort Lauderdale to Kingston, Jamaica;
and from Kingston back to Fort Lauderdale. The last flight landed in Fort
Lauderdale at 2:52 p.m.
Swaters was met at the gate by Susan Wagner, Spirit Airlines’ Manager for
Pilot Base Operations in Fort Lauderdale, who told Swaters that he had been
2
randomly selected to take a drug test that afternoon. Swaters apparently spent
some time chatting amiably with Wagner and with Paul Olechowski, Spirit
Airlines’ Chief Pilot. It was 3:40 p.m. before Swaters was given the necessary
paperwork to take to the testing facility. He was told to report to a collection site
called Global MRO.
At around 4:20 p.m., Swaters phoned Olechowski to inform him that he had
encountered car trouble and had been unable to reach the testing facility. Swaters
then spoke with Toni Benson, Spirit Airlines’ Drug and Alcohol Program
Manager. Swaters told Benson that he was at a gas station and that his car had
broken down. Because Global MRO closed at 4:30 p.m., Benson instructed
Swaters to go to another facility, Concentra, which was open until midnight. She
asked Swaters to get to the facility as soon as possible, and suggested that he take a
cab. Swaters expressed unease at the idea of leaving his car in an unfamiliar part
of town, and instead decided to replace and recharge his car battery.
Swaters subsequently arrived at Concentra between 6:30 p.m. and 7:10 p.m.1
His sample was collected at 8:47 p.m. While at the facility, he signed and dated
the following statement on the Federal Custody and Control Form (“CCF” or
1
The record appears unclear as to precisely when Swaters arrived at the facility. Swaters
signed in at 7:10 p.m.; however, he claims that he arrived at 6:30 p.m., and did not sign in until
7:10 p.m. because he was first required to complete paperwork. R. at 278. All citations are to
the official agency record. Hence, the citation “R. at X” designates page X of the official agency
record.
3
“custody form”) used to keep track of his specimen: “I certify that I provided my
urine specimen to the collector; that I have not adulterated it in any manner; each
specimen bottle used was sealed with a tamper-evident seal in my presence; and
that the information provided on this form and on the label affixed to each
specimen bottle is correct.” He also initialed the sealed specimen bottles.
The sample was then sent to Quest Diagnostics, Inc., a laboratory approved
by the Department of Health and Human Services (“DHHS”) to perform federally-
mandated drug tests. On March 8, 2007, Quest reported to Spirit Airlines that
Swaters’s sample contained metabolites associated with three prohibited controlled
substances: benzoylecgonine (a metabolite of cocaine); morphine; and
6-monoacetylmorphine (“6-AM” or “6-MAM”), a metabolite associated
specifically with heroin. The concentration of each substance was detected at
levels far above the “cut-off points” allowed under federal regulations.2
Dr. Dale Plapp, one of Spirit’s Medical Review Officers (“MROs”), verified
the results and reported them to Swaters. Swaters denied taking the drugs, and
indeed denied having taken drugs at any time during his career as a pilot.
However, he offered no explanation as to how the drugs could have shown up in
2
Specifically, the cut-off point for benzoylecgonine is 150 nanograms per milliliter
(ng/ml); the sample contained 9,455.91 ng/ml. The cut-off for morphine is 2,000 ng/ml; the
sample contained 16,023.4 ng/ml. The cut-off for 6-monoacetylmorphine is 10 ng/ml; the
sample contained 499.27 ng/ml. See Adm’r v. Swaters, NTSB Order No. EA-5400, 2008 WL
3272390, at *9 (Aug. 1 2008).
4
his sample. Swaters requested that a so-called “split sample” of his urine specimen
be submitted for testing at another facility. Accordingly, the specimen was sent by
Quest to Diagnostic Sciences, Inc. (“DSI”), another DHHS-approved testing
facility. DSI reported the same results as those reported by Quest. The results
were again confirmed by a Medical Review Officer.
Based on the finding of prohibited drugs in his system, Swaters was found to
be in violation of Federal Aviation Regulations § 91.17(a)(3) and § 121.455(b).3
3
Regulation 91.17(a)(3) provides that “[n]o person may act or attempt to act as a
crewmember of a civil aircraft . . . [w]hile using any drug that affects the person’s faculties in
any way contrary to safety.” 14 C.F.R. § 91.17(a)(3).
Regulation 121.455(b) provides: “[n]o certificate holder or operator may knowingly use
any person to perform, nor may any person perform for a certificate holder or operator, either
directly or by contract, any function listed in Appendix I to this part while that person has a
prohibited drug, as defined in that appendix, in his or her system.” 14 C.F.R. § 121.455(b).
The ALJ ultimately decided not to impose any sanctions for the § 91.17(a)(3) violation.
The judge observed that “heroin, morphine and 6-monoacetylmorphine and cocaine were in
[Swaters’s] urine” while he was flying the plane and that, as a result, “there [wa]s no certainty
that these drugs that he ingested did not affect his faculties in the prohibited fashion during the
day of February 26, 2007.” Order at *12. However, the judge stated that there “was no clear
evidence from any observer that the Respondent showed any symptoms of drug use while
flying.” Id. As a result, he limited the imposition of sanctions to the §121.455(b) offense to
avoid “any possible prejudice” to Swaters. Id.
It should also be noted that different prohibited substances are subject to different
reporting and verification requirements. As the Board’s decision notes, “DOT drug testing
requirements specify that the MRO must verify a confirmed positive cocaine test result unless
the employee presents a legitimate medical explanation for the presence of drugs found in his
system. However, the MRO must verify the test result as positive, with no conditions, if the
laboratory detects the presence of 6-AM (which indicates heroin use).” Order at *5 (citing 49
C.F.R. §§ 40.137(a), 40.139(a)).
5
On August 27, 2007, the FAA issued an emergency order revoking Swaters’s
Airline Transport Pilot and First Class Airman Medical certifications.4
II. PROCEDURAL HISTORY
A. Proceedings Before the ALJ
Swaters appealed the FAA’s emergency order to the NTSB. Pursuant to the
NTSB’s rules of practice, the FAA filed the order of revocation as the complaint in
the case, and a hearing was held before an NTSB administrative law judge on
March 3 and 4, 2008. Since the evidence presented at the hearing is central to our
resolution of this dispute, we pause here to recount important portions of various
witnesses’ testimony.
One key witness was Arthur Stachurski, the medical technologist at
Concentra who collected Swaters’s urine sample on February 26, 2007. Stachurski
said that he had no specific recollection of having taken Swaters’s urine specimen.
However, he explained that he follows a standard set of procedures in collecting
each sample. He described the procedures in this way:
4
The FAA issues various kinds of pilot certificates -- e.g., an airline transport pilot
certificate (for passenger airline pilots), a commercial pilot certificate (for pilots of
non-passenger commercial aircraft), and a private, recreational or student pilot certificate. See,
e.g., 14 C.F.R. §§ 61.1 - 61.167. Each type of pilot certificate requires a corresponding type of
medical certificate. See 14 C.F.R. §§ 67.101 - 67.415. In addition to revoking his Airline
Transport Pilot certificate, the ALJ affirmed the revocation of Swaters’s medical certificates. As
the FAA points out, Swaters does not challenge the revocation of his medical certificates in this
appeal. Red Br. at 3 n.4.
6
What I do is, I fill up two vials, one 30 milliliters and one 15
milliliters, and then I put the labels that are on the CCF [on the vials],
seal the bottles in front of the patient, and I have him initial them off,
first and last initial. He does so. And then I put the specimen bottles
in the bag in front of the employee, and I ask him to sign the CCF
form stating that he has given me the urine, signed off on it, initialed
them in his presence, and then I seal the bag in his presence as well.
R. at 306. The custody form is placed in the bag with the specimen bottles, and the
bag is sent to a laboratory, such as Quest or DSI, for analysis.
Swaters also testified at the hearing. He claimed that he had not been
allowed to witness certain of the steps described by Stachurski in the handling of
his sample. In particular, he claimed that after his urine sample was poured into
the two specimen bottles, Stachurski told him to dispose of the excess urine.
According to Swaters, this allowed Stachurski to seal the bottles when Swaters was
not present. Swaters also testified that he left the collection site after Stachurski
told him he was “good to go,” and that, as a result, Swaters never saw Stachurski
place the specimen bottles in the plastic bag and seal it.
Finally, two expert witnesses testified at the hearing: the FAA called Dr.
Robert White, DSI’s Director of Clinical Chemistry, and Swaters presented Dr.
Vina Spiehler, a pharmacologist certified in forensic toxicology. Each expert
testified about the properties of the drugs in question; the extent to which the
effects of the drugs might be observable in the behavior of a person under their
7
influence; and about how long after ingestion the metabolites associated with the
various drugs could be detected in urine.
Dr. White was asked whether it would be unusual for no physical symptoms
to appear in a person who had taken these drugs within ten to twelve hours of
having ingested them. He responded:
It depends on who’s doing the observing, whether you’ve got a trained
observer or not, first of all. Second of all, it depends on how much
they took and it’s the same thing after time and time again, you can go
as low as a few molecules up to an overdose where somebody can’t
even move. It depends on how much they took.
R. at 355.
As for how long the metabolites associated with the various drugs remain
present in urine, Dr. White testified that 6-AM metabolites stay in the system
between two and ten hours. “It ought to be around for a couple of hours, may be
out, depending on an individual’s metabolism and their state of hydration, may be
out to eight, ten hours.” R. at 353. He was asked whether, given the level of 6-
AM found in the sample at issue here, Swaters ingested the heroin within eight to
ten hours of the test. Dr. White responded “I think so. And yes, this is a pretty
substantial level in this case, so I would say well within that area.” R. at 354.
Dr. Spiehler’s testimony was largely consistent with Dr. White’s. When
asked about the observable symptoms associated with the different drugs, Dr.
Spiehler said she “couldn’t really extrapolate behavior or symptoms from urine
8
levels.” R. at 451. She said that cocaine was a stimulant and that heroin had a
sedating effect. R. at 453. While she described the behavior of people under the
influence of each drug individually, she stated that she had never personally
observed a person on both drugs simultaneously. She explained that, taken
together, the effects of the drugs
might be somewhat different. I’ve not actually seen a person go
through conversion [from the effects of one drug to the other], but
I’ve reviewed police reports of people who took both of them
together. And initially, they show the cocaine stimulation and then
after a few minutes, maybe 15 or 20 minutes . . . they switch over and
go on the nod and begin to show the effects of the heroin.
R. at 453-54.
Dr. Spiehler also explained that the effects of the drugs “depend[] on the
person’s experience with the drug. If they’ve been using it chronically and have
built up a tolerance, they’ll show less effect and the effect will go away sooner . . . .
So it depends not only on how much they take, but what their own personal
tolerance is to the drug.” R. at 455. Finally, she said that whether an observer
would notice anything would “[d]epend[] on the level of closeness and observation
of that person.” R. at 462.
Dr. Spiehler was also asked how long the various drugs in question remain
present in urine. She testified that based on the level of 6-AM metabolites in
Swaters’s sample, “I think it would have to have been more than two hours before
9
the urine was donated, but less than 12 hours.” R. at 451. She explained: “The
longest window of detection in urine I’ve seen in the literature is 12 hours, but it
does take some time for it to get into the urine, especially to get into the urine in
peak levels, and I think that’s about two hours from my review of the literature.”
R. at 451-52. Furthermore, she opined that if the heroin had been ingested more
than 12 hours prior to the urine collection, “[i]t’s unlikely that [6-AM] would have
been detected at all in the urine at a 10 nanograms per mil [l]evel.” R. at 456-57.
When asked whether 6-AM would have shown up in the urine if it had been taken
fewer than two hours before, she said: “It’s unlikely that it would be that high. It
might be greater than 10 [ng/ml], but I don’t think it would be as high as the 499
[ng/ml], or the higher numbers that were found by the second laboratory if it had
been that soon.” R. at 457.
At the conclusion of the proceedings on March 4, 2008, the ALJ announced
his ruling orally upholding the FAA’s revocation of Swaters’s certificates. In
addressing the procedures used in collecting Swaters’s specimen, the ALJ said that
he found Stachurski to be credible and found Swaters’s testimony not to be
credible. Specifically, the law judge said:
I . . . find that Arthur Stachurski, the urine collector, is a completely
credible witness with no reason to testify falsely. He did not
remember the Respondent specifically, but testified to his usual
procedures in collecting urine for DOT [Department of
Transportation] random drug tests. He testified credibly that he always
10
pours the urine from the collection cup into the two specimen bottles
in the presence of the donor, has the donor sign the tamper evident
seals, and places them on the specimen bottles in the donor’s
presence.
....
I do not find the Respondent to be a credible witness in this regard. I
observed his testimony and, while he was polite, I do not consider his
demeanor to be convincing or forthcoming.
Adm’r v. Swaters, NTSB Order No. EA-5400, 2008 WL 3272390, at *8 (Aug. 1,
2008) (“Order”).5
The ALJ also addressed Swaters’s claim that he could not have taken the
prohibited drugs after the start of his shift at 4:55 a.m. on February 26, 2007. The
judge reasoned that, since no one who worked with Swaters during the time period
in question saw anything unusual about his behavior, and since Swaters had hardly
ever been alone while on duty, Swaters had probably not taken the drugs during
working hours. The ALJ, however, made no finding of fact as to when Swaters
had taken the drugs. The judge opined only that Swaters could have taken the
drugs during the previous evening, when Swaters admitted to having been alone.
As the ALJ stated:
I agree that it appears indeed unlikely that [Mr. Swaters] could have
ingested prohibited drugs in the quantities found in urine after he
reported for work at 4:55 a.m. on February 26, 2007. However, that
5
Our citations to the initial decision are to the copy attached to the NTSB’s Opinion and
Order.
11
does not preclude that he could have ingested the drugs during the
evening of February 25th, 2007 when he was, by his own account,
alone.
Id. at *10.
Although the experts had testified that 6-AM would not likely be present in a
person’s urine after twelve hours, the ALJ explained: “[t]he amount of time that
6-monoacetylmorphine is detectable in urine is an estimate, and from the testimony
of Dr. White and Dr. Spiehler, could be influenced by the tolerance of the drug in
the user, and by the quantity ingested.” Id. Accordingly, on March 4, 2008, the
administrative law judge upheld the FAA’s revocation of Swaters’s certificates.
B. Proceedings Before the Full Board
Swaters next appealed the ALJ’s decision to the full National Transportation
Safety Board, advancing essentially the same arguments as those he presented
before the ALJ. On August 4, 2008, the NTSB entered a final order stating that it
“agree[d] with the law judge’s analysis and discern[ed] no basis to overturn his
decision.” Order at *3.6
First, the Board agreed with the ALJ’s determination that the FAA had made
a prima facie showing that Swaters’s urine had tested positive for prohibited drugs.
6
The Board’s review of ALJ decisions is plenary. Singer v. Garvey, 208 F.3d 555, 558
(6th Cir. 2000) (“The NTSB has plenary review authority with respect to ALJ decision
making.”); see also 5 U.S.C. § 557(b) (“On appeal from or review of the initial decision, the
agency has all the powers which it would have in making the initial decision[.]”).
12
Indeed, the Board found “more than enough evidence to establish the
Administrator’s prima facie case.” Id. at *5. Like the ALJ, the Board concluded
that Swaters had “demonstrate[d] no legitimate issue with the chain of custody of
his urine specimen, or any other grounds for concluding that the Quest Diagnostics
and DSI Laboratory findings were not based on tests of the urine specimen
respondent provided after his duty day on February 26, 2007.” Id. at *3. The
Board emphasized that the “law judge made a clear, adverse credibility finding
against respondent’s claim as to any errors in the collection procedure or chain of
custody of the specimen sample.” Id. at *4. The Board further explained that
“credibility determinations are generally within the exclusive province of the law
judge,” and that it saw no reason to overturn the ALJ’s assessment. Id.
The Board also rejected Swaters’s objection to the ALJ’s finding that
Swaters could have ingested the drugs on the evening before the drug test. Citing
portions of Dr. White’s and Dr. Spiehler’s testimony, the Board found that there
was “a basis in the record for the law judge’s conclusions regarding metabolism.”
Id. This was so, the Board concluded, even if Swaters’s “point that there is no link
between tolerance and metabolism may [have been] well taken.” Id.
In light of these determinations, the Board was unpersuaded by Swaters’s
affirmative defense. Specifically, the Board explained that “[r]espondent’s
uncredited testimony and the testimony of his witnesses as to their observations
13
regarding the absence of any visible signs of drug intoxication, along with
respondent’s arguments regarding that evidence, are insufficient to carry his
burden to rebut the [FAA’s] prima facie case.” Id. at *5 (emphasis omitted).
Accordingly, the Board affirmed the FAA’s revocation order and denied Swaters’s
appeal.
Swaters filed the instant petition for review in this Court.
III. DISCUSSION
A. Standard of Review
We have jurisdiction to review final orders issued by the National
Transportation Safety Board. 49 U.S.C. § 1153(a) (“The appropriate court of
appeals of the United States or the United States Court of Appeals for the District
of Columbia Circuit may review a final order of the National Transportation Safety
Board under this chapter.”); see also 49 U.S.C. § 1153(b)(3) (giving the Courts of
Appeals “exclusive jurisdiction to affirm, amend, modify, or set aside any part of
the order and [to] order the Board to conduct further proceedings”). Our review of
Board decisions, however, is narrow and deferential: we may disturb a decision by
the NTSB only if it is arbitrary and capricious. Coghlan v. Nat’l Transp. Safety
Bd., 470 F.3d 1300, 1304 (11th Cir. 2006) (“We uphold a decision by the NTSB
unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law, or the challenged decision is contrary to constitutional right,
14
power, privilege, or immunity.”) (quotation marks omitted). “In other words,
when reviewing an agency decision under the ‘arbitrary and capricious’ standard,
we must defer to the wisdom of the agency provided their decision is reasoned and
rational.” McHenry v. Bond, 668 F.2d 1185, 1190 (11th Cir. 1982).
“Findings of fact by the Board, if supported by substantial evidence, are
conclusive.” 49 U.S.C. 1153(b)(3); see also Coghlan, 470 F.3d at 1304.
“Substantial evidence,” we have explained, “is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” McHenry, 668
F.2d at 1190 (citation and quotation marks omitted). “It is something more than a
scintilla of evidence, but something less than the weight of the evidence; the
possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s findings from being supported by substantial
evidence.” Id. (citation and quotation marks omitted).
Swaters advances two interrelated contentions on appeal: first, he argues that
the NTSB erred in concluding that the FAA made a prima facie showing that his
urine sample tested positive for prohibited substances; and second, he claims that
the NTSB erred in concluding that he failed to establish his affirmative defense --
namely, that the urine specimen could not have belonged to him. We do not
believe that it was arbitrary and capricious for the Board to have reached either of
these conclusions.
15
B. The FAA’s Prima Facie Case
Swaters first suggests that the Board erred in concluding that the FAA
succeeded in making a prima facie showing that his urine sample tested positive
for prohibited drugs. There is no dispute that the sample in question contained
prohibited drugs. Rather, Swaters’s claim is that the sample was not his. In
particular, he contends that the collection and handling of his sample was somehow
flawed. On this record, however, we can find nothing arbitrary and capricious in
the Board’s determination that the FAA had established a prima facie case.
First, Arthur Stachurski’s testimony clearly supports the Board’s
determination that proper safeguards and procedures were followed during the
collection of Swaters’s sample. As we’ve noted, Stachurski recounted the steps he
regularly takes in order to ensure the integrity of the samples he collects, and the
record convincingly shows that these steps were observed in collecting Swaters’s
sample. Moreover, Swaters himself initialed the sealed bottles and signed a
certification expressly stating that the samples were sealed in his presence.
Swaters testified unequivocally that he understood that in initialing the seals, he
was “certif[ying] that it’s my urine and that it has been sealed.” R. at 439. Dr.
Brunelli, Quest Diagnostic’s Laboratory Director, also testified that when Quest
received the specimen bottles from Concentra, they showed no sign of any
16
tampering. We are hard-pressed to see how Swaters’s sample could have become
corrupted while in Concentra’s or Stachurski’s custody.
Likewise, there is substantial evidence to show that the integrity of
Swaters’s sample was maintained after it was sent to Quest for analysis.7 Dr.
Brunelli gave a detailed explanation of the procedures Quest uses to track samples
after they are received: the sealed bag is opened and the bottles containing the
samples are checked for signs of tampering; the specimen identification numbers
on the seals are checked against the identification numbers on the custody form
included with the samples; the sample is then assigned an internal tracking number,
which is affixed to the custody form and to the specimen bottles; that number is
then used to track the handling of the sample throughout the rest of the testing
process. At the hearing, Dr. Brunelli reviewed the documents used to track
Swaters’s sample and verified that each of these steps was followed. R. at 337-39.
He also testified that he observed nothing inappropriate or out of the ordinary in
the testing of the sample, and that he had no doubt as to the accuracy of the testing
of the sample. R. at 336.
In addition to evidence demonstrating the soundness of the chain of custody,
the ALJ’s determination regarding Swaters’s lack of credibility represents a
second, independent source of support for the Board’s conclusion. Importantly,
7
Swaters makes no challenge to DSI’s handling of the split sample.
17
the ALJ did not simply believe Stachurski’s testimony over Swaters’s; rather, the
judge made an explicit finding that Swaters was not a credible witness. That
determination itself can be regarded as substantive evidence in favor of the ALJ’s
ultimate conclusion. Cf. United States v. Woodard, 459 F.3d 1078, 1087 (11th Cir.
2006) (“[A] defendant’s testimony - if disbelieved by the jury - may be considered
substantive evidence of guilt.”); United States v. Brown, 53 F.3d 312, 314 (11th
Cir. 1995) (same).
In short, on this record, we cannot say that it was arbitrary and capricious for
the Board to conclude that the FAA made a prima facie showing that Swaters’s
urine sample had tested positive for prohibited substances.
C. Swaters’s Affirmative Defense
Once the FAA has made out a prima facie case, the burden shifts to the
respondent to advance an affirmative defense. See, e.g., Adm’r v. Gibbs, NTSB
Order No. EA-5291, 2007 WL 1726666, at *2 (June 5, 2007); see also Miranda v.
Nat’l Transp. Safety Bd., 866 F.2d 805, 809 (5th Cir. 1989) (“Once the FAA has
established a prima facie case the burden shifts to [the pilot] to prove the validity
of any affirmative defense he may have.”) (quotation marks removed). The
defense must be established by a preponderance of the evidence. Adm’r v.
Tsegaye, NTSB Order No. EA-4205, 1994 WL 324279, at n.7 (June 23, 1994)
(“We agree with the Administrator that respondent must do more than present a
18
prima facie case for an affirmative defense. Respondent must prove his affirmative
defense by a preponderance of the evidence.”).
Swaters first purports to identify irregularities in the collection and
subsequent handling of his sample. Specifically, he notes that when Stachurski
was interviewed, he could not recall any specific details concerning the collection
of Swaters’s sample. As a result, Swaters complains, “[t]he only evidence which
caused the revocation of his certificates was the chain of custody, which is not . . .
based on actual knowledge, but ‘usual and customary’ practice.” Gray Br. at 9.
But there is nothing remarkable about Stachurski’s inability to recall the particulars
associated with each individual donor weeks or months after the fact. Indeed, if
anything, the fact that Stachurski had no special recollection regarding the taking
of Swaters’s sample suggests that the sample was collected without incident. In
any event, Swaters must do more than point to Stachurski’s inability to recall
specifically that nothing untoward occurred in the collection of his sample. Rather,
it is incumbent upon Swaters to affirmatively cite evidence suggesting that
something went awry. This he has failed to do.
To be sure, Swaters claims that he was unable to witness the sealing of the
bottles containing his sample and the sealing of the plastic bag in which the bottles
were ultimately sent to Quest. Once again, however, the ALJ specifically found
19
that Swaters’s testimony lacked credibility on this point, Order at *8, and the
NTSB found no reason to question the ALJ’s finding. As the Board explained:
In this regard, the law judge made a clear, adverse credibility finding
against respondent’s claim as to any errors in the collection procedure
or chain of custody of the specimen sample and credited the testimony
of the Administrator’s witnesses. Board precedent is clear that
credibility determinations are generally within the exclusive province
of the law judge and will not be disturbed in the absence of
arbitrariness, capriciousness, or some other compelling reason.
Respondent demonstrates no compelling reason, nor do we discern
one, to overturn the law judge’s negative assessment of respondent’s
testimony.
Order at *4.
Substantial evidence supports the ALJ’s adverse assessment of Swaters’s
credibility (and the Board’s acceptance of that assessment). Among other things,
the ALJ’s determination is supported by the fact that, although Swaters claims not
to have witnessed the sealing of the specimen bottles, he initialed the sealed bottles
and signed the certification on the chain of custody form specifically stating that he
had witnessed the sealing. Because it is supported by substantial evidence, the
ALJ’s determination regarding Swaters’s lack of credibility is conclusive. We also
reiterate that the ALJ’s credibility determination does not simply fail to support
Swaters’s case; it constitutes positive evidence against Swaters and in support of
the FAA’s case. Cf. Woodard, 459 F.3d at 1087; Brown, 53 F.3d at 314.
20
Furthermore, even assuming that the bag was not sealed in Swaters’s
presence, the Board still could reasonably have concluded that the sample belonged
to Swaters. As we have noted, under the protocol followed by Stachurksi, by the
time that samples are enclosed and sealed in the plastic bag, the bottles containing
the samples have themselves already been signed and sealed. Hence, so long as the
seal on the bottles showed no signs of tampering -- and Dr. Brunelli testified
unequivocally that they did not -- the integrity of the sample could not have been
compromised. FAA Guidelines address precisely this issue and make clear that
failure to seal the bag in the donor’s presence does not constitute a “fatal error.”
Specifically, 49 C.F.R. §40.199 provides:
(a) As the MRO, when the laboratory discovers a “fatal flaw” during
its processing of incoming specimens, the laboratory will report to
you that the specimen has been “Rejected for Testing” (with the
reason stated). You must always cancel such a test.
(b) The following are “fatal flaws”:
(1) There is no printed collector’s name and no collector’s signature;
(2) The specimen ID numbers on the specimen bottle and the CCF do
not match;
(3) The specimen bottle seal is broken or shows evidence of tampering
(and a split specimen cannot be redesignated; and
(4) Because of leakage or other causes, there is an insufficient amount
of urine in the primary specimen bottle for analysis and the specimens
cannot be redesignated.
49 C.F.R. § 40.199 (citations omitted).
21
The only actual error to which Swaters points is the notation on a form
generated by Quest in processing Swaters’s sample that indicated that the specimen
had been collected at 8:47 a.m. instead of 8:47 p.m. Yet Swaters fails to offer any
suggestion as to how this might have affected the results of his urine test. Pointing
to this single error -- and a very minor one at that -- simply affords no ground for
casting doubt on the entire sample-collecting process.
In short, the Board concluded that Swaters had “demonstrate[d] no
legitimate issue with the chain of custody of his urine specimen, or any other
grounds for concluding that the Quest Diagnostics and DSI Laboratory findings
were not based on tests of the urine specimen [Swaters] provided after his duty day
on February 26, 2007.” Order at *3. That determination was not arbitrary and
capricious or in any other way contrary to law.
In addition, Swaters argues that the Board’s determination was arbitrary and
capricious because expert testimony presented at the hearing establishes that it is
impossible for the sample to have been his. Swaters first claims that, based on the
pharmacological evidence in the record, he could not have ingested heroin prior to
4:55 a.m. on February 26. Given 6-AM’s short half-life, Swaters argues that the
substance could not possibly have remained in his urine until his sample was taken
at 8:47 p.m. Nothing in the record, however, warrants so sweeping a conclusion.
Neither Dr. White nor Dr. Spiehler was ever asked whether the level of 6-AM
22
found in the urine sample would have been impossible if Swaters had ingested the
heroin before 4:55 a.m.; nor did either expert volunteer any specific statement to
that effect.
To be sure, the testimony of both experts suggests that the 6-AM level found
in the urine sample would have been unlikely if the heroin had been taken on the
day before the test (or at any rate, prior to 4:55 a.m on February 26). Dr. White
surmised that, based on the 6-AM levels found in the sample, the substance would
most likely have been taken within ten hours of taking the test. Similarly, Dr.
Spiehler testified that in the relevant medical literature, twelve hours after ingestion
was the longest time 6-AM was found to have remained in urine. To say that the
result obtained here is unlikely, however, is not the same thing as saying that it
would have been impossible.
Indeed, our review of the record indicates that Dr. White and Dr. Spiehler
were decidedly tentative in their testimony regarding the time period over which 6-
AM could be detected in urine. Thus, for example, Dr. White stated that 6-AM
metabolites “ought to be around for a couple of hours,” and “may be out” in eight
to ten hours. R. at 353 (emphasis added). Asked again how long it might take for
6-AM to no longer show up in urine, he responded: “I’d say within ten hours,
probably a little less, simply because it does have a very short half-life.” R. at 354
(emphasis added). These remarks are estimates, not categorical pronouncements.
23
In addition, Dr. White opined that how long 6-AM may remain in a person’s urine
can be affected by factors such as the person’s metabolism and his degree of
hydration. Nothing in the record indicates that these factors could not account for
the presence of 6-AM metabolites in Swaters’s urine beyond the substance’s
typical half-life.
Dr. Spiehler’s testimony was similarly tentative regarding how long after
ingestion 6-AM might be detected in a person’s urine. She stated, for example, “I
think it would have to have been more than two hours before the urine was
donated, but less than 12 hours.” R. at 451 (emphasis added). She also opined that
“[i]f the heroin had been ingested more than 12 hours prior to the urine collection .
. . it’s unlikely that [6-AM] would have been detected at all in the urine at a 10
[ng/ml] level.” R. at 456-57 (emphasis added). Again, like Dr. White’s testimony,
these statements express generalities and probabilities, not definitive limits or
medical certainties. On this record, the NTSB could reasonably reject Swaters’s
claim that it was impossible for him to have ingested the drugs during the evening
of February 25, or at some time prior to 4:55 a.m.
Moreover, even if Swaters were correct in maintaining that he could not
possibly have ingested the heroin prior to 4:55 a.m., it still would not have been
arbitrary and capricious for the Board to conclude that the sample belonged to
Swaters. On the contrary, the Board could reasonably have reached an even more
24
disquieting conclusion on this record: namely, that Swaters took the drug within
ten to twelve hours of submitting his sample. Such a conclusion would constitute
even more formidable evidence that Swaters was indeed under the influence of the
prohibited substances during any or all of the February 26, 2007 flights to Orlando,
to Kingston, Jamaica, and Fort Lauderdale.
Swaters claims that he could not have taken any drugs after 4:55 a.m.
because after that time he was constantly in the presence of crew members. As a
result, he argues, he had no opportunity to take any drugs; he also points to the fact
that none of the people who interacted with him during this period observed any
sign that he was under the influence of the drugs.
It is simply untrue, however, that Swaters was never alone after 4:55 a.m. on
February 26. At a minimum, Swaters was alone when using the restroom during
the time period in question. Swaters acknowledged that he used the restroom
between the legs of the various flights on that day, and he admitted that when he
used the airplane’s restroom, he was unaccompanied. R. at 440-41. The exact
number and duration of his bathroom breaks is unclear from the record. Swaters
was also unclear as to whether he might have used restrooms other than the one on
the airplane. At all events, Swaters’s testimony indicates that there was a period of
25
roughly thirty to forty minutes between his flights that day.8 There is substantial
evidence in the record suggesting that Swaters had the opportunity to take the
drugs during this period. To be sure, the ALJ said that “it appear[ed] indeed
unlikely that the Respondent could have ingested prohibited drugs in the quantities
found in his urine after he reported for work at 4:55 a.m. on February 26, 2007.”
Order at *10. Notably, however, we have neither a finding of fact nor a square
holding from either the ALJ or the Board about when Swaters had taken the drugs.
What they did find categorically was that the sample containing the offending
metabolites belonged to him.
As for the lack of symptoms, both Dr. White and Dr. Spiehler9 testified that
the observable effects resulting from this combination of substances could be
8
Swaters referred to the stops between his flights on February 26 as “quick turn[s],” as
opposed to lengthy stops. R. at 417. The first flight arrived at Orlando from San Juan at 8:06
a.m. and embarked on the second flight leg to Fort Lauderdale at 8:42 a.m. R. at 417. Swaters’s
testimony is unclear as to the length of time between the plane’s arrival at Fort Lauderdale and
its departure for the next flight to Kingston, Jamaica. However, there was a period of thirty-
three minutes on the ground between arriving from Fort Lauderdale and departing for Kingston,
Jamaica. R. at 419.
9
We note that it is unclear whether Dr. Spiehler was qualified to opine on questions of
symptomology. At the hearing before the ALJ, there was some confusion as to what Dr.
Spiehler was being offered as an expert for. At first, she was offered as an expert “for the
purposes of offering an opinion as to the symptomology of the drugs that [Swaters] is alleged to
have ingested here.” R. at 449. However, on questioning from the ALJ, Swaters’s counsel
stated that he was offering Dr. Spiehler “as an expert in the pharmacology of the drugs that
[Swaters] is alleged to have ingested.” R. at 450. It was under the latter description that Dr.
Spiehler was accepted. Dr. Spiehler’s testimony regarding symptoms is of limited value in any
event, given her admission that she “couldn’t really extrapolate behavior or symptoms from
urine levels.” R. at 451.
26
affected by a variety of factors. For example, when asked whether an observer
would notice anything unusual in the behavior of a person who had taken the drugs
found in Swaters’s sample, Dr. White replied that it would “depend[] on who’s
doing the observing, whether you’ve got a trained observer or not.” R. at 355.
Additionally, Dr. White opined that the symptoms exhibited would “depend[] on
how much they took.” R. at 355. Dr. Spiehler, too, stated that the size of the dose,
as well as the user’s tolerance to the drug, could affect the symptoms exhibited by
a user, and conceded that she “couldn’t really extrapolate behavior or symptoms
from urine levels.” R. at 451. Hence, the fact that no one observed anything
unusual in Swaters’s behavior does not compel the conclusion that he could not
have taken the drugs after 4:55 a.m. In short, there was nothing arbitrary and
capricious about the Board’s conclusion that Swaters’s “uncredited testimony and
the testimony of his witnesses as to their observations regarding the absence of any
visible signs of drug intoxication . . . [were] insufficient to carry his burden to
rebut the prima facie case.” Order at *5.
We, therefore, hold that it was not arbitrary and capricious for the Board to
conclude that the FAA had made a prima facie showing that Swaters’s urine
sample had tested positive for prohibited substances. Likewise, it was not arbitrary
and capricious for the Board to conclude that Swaters failed to rebut the FAA’s
prima facie case. The most that can be said in petitioner’s favor is that he
27
succeeded in raising the possibility that the sample may not have been his. As we
have noted, however, “the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s findings from being
supported by substantial evidence.” McHenry, 668 F.2d at 1190 (quotation marks
omitted). Even if the Board could have accepted Swaters’s position, it did not act
arbitrarily and capriciously in declining to do so. Because we cannot say that the
Board’s decision was an arbitrary or capricious one, we affirm its decision
upholding the revocation of Swaters’s certificates and we deny his petition for
review.
AFFIRMED, PETITION DENIED.
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