Guilty Until Proven Innocent - Litigating Shy Bladder Cases Before the National Transportation Safety Board

Abstract

For airmen, the drug testing regulations and procedures in the United States are dispiriting, oppressive, and unjust. Evidencing contempt for basic physiology, an airman unable to produce forty-five milliliters of urine within three hours is deemed to have “refused” a Department of Transportation (DOT) drug test. While the regulations require the airman to be briefed on the shy bladder protocol, this requirement is not enforced by the National Transportation Safety Board (NTSB). The FAA, after losing a case where the airman left the drug testing facility without being warned that such conduct would be deemed a refusal, simply abolished the rule to ensure victory for the FAA in future cases. Drug testing is so automated that the person administering the drug test merely follows the prompts of a computer program. The computer determines the conclusion. At trial, the drug testing personnel who administered the test need only follow the computer’ prompts and articulate its conclusions. The drug testing system truly is Orwellian. Finally, in one case, Administrator v. Pham, the specific recollection of the collector was so poor and the confusion in communication with the pilot was so misleading, that the NTSB, in an unprecedented decision, reduced the sanction for “refusing” a drug test from an emergency order of revocation to a six-month suspension. Pham’s victory was pyrrhic, since the United States Court of Appeals for the District of Columbia reversed the NTSB, concluding that a suspension, rather than a revocation, of Pham’s airman certificate was contrary to law. As Montesquieu noted: “There is no greater tyranny than that which is perpetuated under the shield of the law and in the name of justice.”