Clinton A. McHenry v. Langhorne M. Bond, Administrator, Federal Aviation Administration, and National Transportation Safety Board

*1196HILL, Circuit Judge,

dissenting:

Respectfully, I dissent.

TGA (Temporary Global Amnesia) does not purport to be a cause, or an explanation of a cause. It is merely descriptive of what has been experienced. All expert witnesses agree that the cause of the temporary loss of memory — amnesia—is unknown. Therefore the Board was authorized to find that McHenry had, indeed, experienced a “disturbance of consciousness without satisfactory explanation of the cause” (14 C.F.R. § 67.13(d)(2)(i)(b)).

The law judge followed Petition of Weddle, 1 NTSB 1933 (1972), which had, astonishing to me, found the descriptive term Temporary Global Amnesia, the cause of which is unknown, to have constituted a satisfactory explanation for loss of consciousness. On appeal, the Board reviewed and overruled Weddle. In doing so, the Board announced its somewhat belated realization that TGA is only a descriptive term, cause unknown. To me, that is a satisfactory explanation of its rationale for departing from that prior precedent.

In Petition of Mosely, 2 NTSB 1824 (1975), the cause of loss of consciousness was known — subarachnoid hemorrhage. It is a fact that the cause of the hemorrhage was not known, but, where loss of consciousness has been caused by a blow to the head, it isn’t necessary to know who struck the blow.

It may be that 14 C.F.R. § 67.13(d)(2)(i)(b) is ill advised. It may be that medically acceptable prognosis that no recurrence will occur should be substituted for it. Were that the regulation, the result here might be different, but it isn’t.

The National Transportation Safety Board is given heavy responsibility in passing upon medical fitness to continue to engage in the operation of aircraft. To a professional of Capt. McHenry’s obvious skills and accomplishments, the loss of certification is a tragedy, but not so tragic as might be the ill advised grant. The Board’s decision in this hard case was not, in my view, arbitrary or capricious; it was reasoned and rational.

I should AFFIRM the Board.