United States Court of Appeals, District of Columbia Circuit
February 16, 2018
Petition for Review of an Order of the Federal Aviation
Julius Chen argued the cause for petitioner. With him on the
briefs was Gregory S. Walden. Pratik A. Shah entered an
G. Dickos and Allison Jones Rushing were on the brief for
amicus curiae American Diabetes Association in support of
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.
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.
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.
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. §§
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).
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.
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 ...