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Friedman v. Federal Aviation Administration

United States Court of Appeals, District of Columbia Circuit

May 25, 2018

Eric Friedman, Petitioner
v.
Federal Aviation Administration, Respondent

          Argued February 16, 2018

          On Petition for Review of an Order of the Federal Aviation Administration

          Z.W. Julius Chen argued the cause for petitioner. With him on the briefs was Gregory S. Walden. Pratik A. Shah entered an appearance.

          Peter G. Dickos and Allison Jones Rushing were on the brief for amicus curiae American Diabetes Association in support of petitioner.

          Casey E. Gardner, Attorney, Federal Aviation Administration, argued the cause and filed the brief for respondent.

          Before: Henderson and Tatel, Circuit Judges, and Williams, Senior Circuit Judge.

          OPINION

          Tatel, Circuit Judge

         For the second time, Eric Friedman, a type-one diabetic and aspiring commercial pilot, challenges the Federal Aviation Administration's refusal to grant him a medical certificate required for commercial flight. Because Friedman uses insulin to manage his blood sugar, the FAA required him to submit data from a relatively new method of blood-glucose testing known as continuous glucose monitoring (CGM), which Friedman declined to provide. In a prior decision, our court held that the FAA "ha[d] not borne its burden of justification" for requiring CGM data. Friedman v. FAA (Friedman I), 841 F.3d 537, 544 (D.C. Cir. 2016). On remand, the FAA explained that it needed the data because CGM is able to detect hypoglycemic episodes often missed by more traditional monitoring, and it supported that explanation with medical studies in the administrative record. Because that explanation satisfies our remand order, we deny the petition for review.

         I.

         The opinion in Friedman I describes the background of this case. Friedman I, 841 F.3d at 539-41. Here, we provide a brief summary and then describe the FAA's actions on remand.

         Congress has directed the FAA to promulgate regulations that "promote safe flight of civil aircraft, " 49 U.S.C. § 44701(a), and to discharge this obligation "in a way that best tends to reduce or eliminate . . . accidents in air transportation, " id. § 44701(c). Specifically, Congress has instructed the FAA to ensure that pilots are "physically able to perform the duties related to[] [their] position." Id. § 44703(a). To implement this directive, the FAA requires pilots to hold medical certificates of one of three classes: pilots who fly commercial airliners must have first-class medical certificates, 14 C.F.R. § 61.23(a)(1), pilots who otherwise fly commercially must have second-class certificates, id. § 61.23(a)(2), and pilots who fly privately must have third-class certificates, id. § 61.23(a)(3). In keeping with Congress's instruction that the FAA consider "the duty of [a commercial] air carrier to provide service with the highest possible degree of safety in the public interest, " 49 U.S.C. § 44701(d)(1), the Federal Air Surgeon, to whom the FAA Administrator has delegated his medical certification authority, 14 C.F.R. § 67.407, has adopted more rigorous medical standards for pilots who fly commercially (first- and second-class) than for those who fly privately (third-class), see id. §§ 61.23(a), 67.101-67.315.

         Under FAA regulations, some medical conditions, including diabetes treated with insulin, are presumptively disqualifying for any class of medical certificate. Id. §§ 67.113(a) (first-class), 67.213(a) (second-class), 67.313(a) (third-class). The primary danger of flying with insulin-treated diabetes, the FAA has explained, is the risk of hypoglycemia, a state of abnormally low blood-glucose levels, which is common among diabetics, especially those who use insulin, and which can impair a range of cognitive functions, including reaction time, memory, problem solving, and spatial reasoning. Special Issuance of Third-Class Airman Medical Certificates to Insulin-Treated Diabetic Airman Applicants, 61 Fed. Reg. 59, 282, 59, 282 (Nov. 21, 1996) (explaining that the FAA's disqualification policy was based in large part on concerns about hypoglycemia).

         Notwithstanding this presumptive disqualification, FAA regulations provide that, "[a]t the discretion of the Federal Air Surgeon, " the agency may grant a "Special Issuance" medical certificate to any applicant who shows an ability to safely perform all authorized duties "to the satisfaction of the . . . Air Surgeon." 14 C.F.R. § 67.401(a). Pursuant to this authority, the Air Surgeon has awarded special-issuance third-class medical certificates to some insulin-treated diabetics-a practice that has led to "no medically related accident, incident, or inflight incapacitation, from any cause." Friedman I, 841 F.3d at 540.

         Although the Air Surgeon has never granted a special-issuance first- or second-class medical certificate to an insulin-treated diabetic, the FAA announced in 2013 that it "hope[d] that in the future [it] may be able to . . . safely certificate . . . a subset of [insulin-treated diabetics]" at the first- and second-class level, and asked the American Diabetes Association (ADA) to form an expert panel "to investigate the possibility of identifying" such diabetics. Letter from Michael P. Huerta, Administrator, FAA, to Robert Ratner, Chief Scientific & Medical Officer, ADA (July 15, 2013), Joint Appendix (J.A) 416. In its report, the panel recommended a protocol for identifying low-risk insulin-treated diabetics and concluded that for ...


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