Regency Air, LLC v. Dickson, No. 20-72084 (9th Cir. 2021)
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The Ninth Circuit denied Regency Air's petition for review challenging the FAA's decision affirming an ALJ's finding that Regency Air violated regulations requiring air carriers to test each employee for drug and alcohol misuse if performing a safety-sensitive function like plane maintenance.
The panel concluded that Regency Air had adequate notice of the dispositive allegations against it, and thus it should have enrolled the first employee in its testing program but failed to do so. The panel also concluded that 14 C.F.R 120.35 and 120.39 are not unconstitutional as applied to the second employee where the employee's concurrent employment, while not addressed in the regulations, unambiguously falls within the regulations' plain text. The panel explained that the FAA chose to promulgate a general rule: if an employee works on an air carrier's planes, the air carrier must enroll the employee in its testing program. The FAA also identified only one narrow exception to this rule, inapplicable here. The panel further concluded that 49 C.F.R. 40.25 is not unconstitutionally vague as to whether Regency Air had to request the second employee's past testing records as an employee. The panel stated that, when an employer hires and becomes obligated to test an employee, it must request past testing records despite the employee's past work on the employer's planes in the scope of other employment. Finally, the panel concluded that the FAA acted within its discretion and established policy in seeking and imposing sanctions against Regency Air.
Court Description: Federal Aviation Administration The panel denied a petition for review brought by Regency Air, LLC challenging a decision by the Federal Aviation Administration (“FAA”) affirming an administrative law judge’s finding that Regency Air violated regulations requiring air carriers to test each employee for drug and alcohol misuse if performing a safety-sensitive function like plane maintenance. The ALJ imposed civil penalties, and the FAA Administrator increased the penalty pursuant to FAA sanction guidance. The panel held that the FAA Administrator correctly held that the FAA’s complaint did not violate due process and that 14 C.F.R. §§ 120.35, 120.39, and 49 C.F.R § 40.25 were not unconstitutional. Specifically, first, the panel held that although the FAA mistakenly but irrelevantly call Regency Air worker Ernest Douglas Long a contractor, it did not violate due process. Regency Air had adequate notice of the dispositive allegations against it: Regency Air should have enrolled Long in its testing program but failed to do so. Second, 14 C.F.R §§ 120.35 and 120.39 were not unconstitutionally vague as to whether Regency Air employee Gary Geis need to be enrolled in Regency Air’s program when already enrolled in SoCal Jet Service’s program. Third, 49 C.F.R. § 40.25 was not REGENCY AIR V. DICKSON 3 unconstitutionally vague as whether Regency Air had to request Geis’s past testing records as an employee. When an employer hires and becomes obligated to test an employee, it must request past testing records despite the employee’s past work on the employer’s planes in the scope of other employment. The panel held that the FAA Administrator also acted within his discretion to modify the ALJ’s initial penalty.
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