David S. Meik v. National Transportation Safety Board and Federal Aviation Administration

710 F.2d 584, 1983 U.S. App. LEXIS 25819
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 14, 1983
Docket82-7175
StatusPublished
Cited by9 cases

This text of 710 F.2d 584 (David S. Meik v. National Transportation Safety Board and Federal Aviation Administration) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
David S. Meik v. National Transportation Safety Board and Federal Aviation Administration, 710 F.2d 584, 1983 U.S. App. LEXIS 25819 (9th Cir. 1983).

Opinion

PER CURIAM:

David S. Meik flew as an United Airlines pilot continuously from 1964 through 1978. In June 1978, at the age of thirty-five, he suffered a moderate cerebrovascular accident (CVA), i.e., stroke. He was hospitalized for a week, during which time he experienced difficulty with speaking and with motor coordination in his right hand. However by the time he was released, he could speak normally and his hand was much better. He has experienced no recurrence since and has no present disability of speech or hand.

Generally, a stroke results from a blockage in a blood vessel in the brain. In Meik’s case, it was caused by an embolus that blocked the middle cerebral artery. The source of the embolus, which is defined as a mass of blood or other matter circulating in the blood stream, has never been determined.

In November 1979, Meik applied for a first-class airman medical certificate in order to resume his career. On September 19, 1980, the Federal Air Surgeon issued a final denial of the application. Meik sought and received a hearing before an Administrative Law Judge, who upheld the denial.

Meik then appealed to the National Transportation Safety Board (NTSB). The NTSB supplemented the record with new evidence arising out of additional medical testing and modified the findings of the ALJ, but also affirmed the denial, basing its decision on the fact that the cause of Meik’s CVA has remained undetermined and, as a result, untreated. Pursuant to 49 U.S.C. § 1486, Meik now petitions for review by this court, contending that (1) the NTSB failed to follow the applicable regulation; and (2) a review of the substantial evidence does not support the Board’s denial of the certificate. We do not find Meik’s arguments persuasive and affirm the NTSB.

Federal regulations define two general categories of conditions which, if experienced by the applicant, are cause for disqualification. The first category lists specific disqualifying conditions. A CVA of the type suffered by Meik is not listed. The second category, at issue here, requires a ease-by-case determination of the health of the applicant.

The regulation allows denial of a first-class airman medical certificate if the Federal Air Surgeon finds that the condition,

(a) Makes the applicant unable to safely perform the duties or exercise the privileges of the airman certificate that he holds or for which he is applying; or
(b) May reasonably be expected, within 2 years after the finding, to make him unable to perform those duties or exercise those privileges.

14 C.F.R. § 67.13(d)(2)(ii) (emphasis added). Meik asserts that he has no condition which makes him presently unable to fly safely and that he should not have been denied the certificate under the second prong of the test because the agency has made no showing that he may reasonably be expected to suffer a second CVA within two years. A certificate cannot be denied by reliance on “mere suggested possibilities.” See Petition of Stetson, EA-751 2 N.T.S.B. 1687, 1689 (1975). Furthermore, it cannot be denied even if the applicant is at a “somewhat greater risk ... as compared to the general population.” See Petition of Moseby, EA-776, 2 N.T.S.B. 1824, 1826 (1975).

*586 Meik argues that the decision of the ALJ was based upon the mere possibility that the pilot might suffer another CVA within his lifetime and not within the two-year limitation specifically set out by the regulation. On review, the NTSB modified some of the findings of the ALJ but upheld his denial of the certificate on the grounds that the cause of the CVA has not been identified and therefore remains untreated, thereby increasing the risk of a second CVA within the two-year limitation set out by the regulation.

Meik also argues that the evidence presented did not support the decisions reached by either the ALJ or the NTSB. At the hearing, Meik introduced four doctors who testified to the risk of recurrence of a CVA. Their testimony treated Meik’s condition from hematological, neurological and cardiovascular points of view. The doctors confined themselves to their own specialized areas, and each stated that Meik appeared to be in good health. They all produced theories for the cause of Meik’s CVA, but none could positively state the reason for it.

Meik asserts that the agency attempted to rebut his strong showing by impermissi-bly relying upon “mere possibilities.” See Petition of Stetson, EA-751, 2 N.T.S.B. at 1689. The “mere possibility]” to which Meik refers is the testimony of Dr. Harold Stevens, a neurologist testifying for the FAA, who reported that Meik’s chance of suffering another CVA is greatly increased over that of the general public and that fifty-two percent of stroke victims will suffer a second stroke within their lifetimes. Dr. Sacher, a hematologist also testifying for the FAA, pointed out that the blood studies, which one of Meik’s doctors performed in vitro, are not a useful predictor of CVA recurrence as they may be normal in the presence of a non-hematological source of emboli, and they are not very specific. The doctors for both Meik and the FAA agree that the current status of Meik’s health is good and that the definite source of the embolus which caused his CVA remains unknown.

The factual questions in issue are to be resolved by the NTSB. 49 U.S.C. § 1422(b). Those findings of fact are conclusive when supported by substantial evidence set out in the record. 49 U.S.C. § 1486(e); Hart v. McLucas, 535 F.2d 516, 520 (9th Cir.1976). The agency’s findings are supported by the evidence if they logically arise from the facts. They need not be the only result which could so arise. Horizon Mutual Savings Bank v. Federal Savings & Loan Insurance Corp., 674 F.2d 1312, 1316 (9th Cir.1982).

Furthermore, the agency’s interpretation of a regulation must be reviewed in relation to the statute from which it arose. Pacific Coast Medical Enterprises v. Harris, 633 F.2d 123, 131 (9th Cir.1980). Under its governing statute, the FAA has a heavy responsibility to:

give full consideration to the duty resting upon air carriers to perform their services with the highest possible degree of safety in the public interest....

49 U.S.C. § 1421(b). ' In affirming the FAA’s denial of the airman certificate, the NTSB found that:

[I]t has been established that the CVA experienced by petitioner involved more than small blood vessels.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
710 F.2d 584, 1983 U.S. App. LEXIS 25819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-s-meik-v-national-transportation-safety-board-and-federal-aviation-ca9-1983.