Notice & Comment

D.C. Circuit Review – Reviewed: Plasma and Pilots

The D.C. Circuit does not seem to be listening to our predictions for a busy May. Although it has broken its silence this week, the Court issued only two, fairly short opinions. But luckily for us, they both touch on administrative law.

First, in CSL Plasma Inc. v. U.S. Customs and Border Protection, blood plasma companies challenged an alleged change in CBP policy that resulted in Mexican plasma donors being denied entrance to the United States using B-1 business visitor visas.  The B-1 category excludes anyone coming to engage in “labor,” and under CBP’s view, “selling plasma constitutes labor for hire in violation of B-1 nonimmigrant status, as both the labor (the taking of plasma) and accrual of profits would occur in the U.S., with no principal place of business in the foreign country.”  Plasma companies sued CBP, alleging multiple APA violations.  The district court sua sponte dismissed the complaint for lack of standing, holding that the plasma companies were not within the “zone of interests” protected by the B-1 classification, which was intended to “protect American labor.”

In a unanimous opinion by Judge Rao, the D.C. Circuit reversed.  The Court concluded that the district court erred in considering the zone-of-interests test a question of subject matter jurisdiction, as the Supreme Court has made clear that it is a merits issue.  The sua sponte dismissal was therefore improper.  The Court went on to consider the zone-of-interests question and reversed the district court’s determination.  The Court concluded that the plasma companies’ injury bears a “plausible relationship to the policies” underlying the B-1 classification, because that classification is designed to protect both American workers who face competition from immigrant labor and American businesses who benefit from transactions with B-1 business visitors.  The district court adopted an excessively strict interpretation of the classification in focusing only on its exclusion rather than the grant of a path to entrance for some temporary business purposes.  The government’s contrary reading—that plasma companies are purely domestic and lack a connection to international trade or commerce—collapsed the merits question of whether the companies engage in business transactions or simply hired labor, with the zone-of-interests question. 

And in Pham v. NTSB, both Ydil Pham and the FAA petitioned for review of the NTSB’s suspension of Pham’s pilot and medical certificates for 180 days.  Pham contends that the NTSB erred in concluding that he refused a drug test required as a condition of employment when he left the test center before providing the requisite amount of urine.  The FAA contends that the NTSB was required to revoke Pham’s certificates rather than suspending them for the failure to complete the drug test.  In an opinion by Judge Rogers (joined by Judge Srinivasan, with Judge Jackson on the panel but not participating), the Court sided with the FAA.  The Court’s rejection of Pham’s arguments was based on substantial evidence review and its deference to the ALJ’s credibility determinations about what Pham was told would happen if he left the test center without providing a full sample.  As for the FAA’s cross-petition, the Court agreed that the NTSB acted contrary to law by reducing Pham’s sanction from revocation of his certificates to a 180-day suspension because, under the Federal Aviation Acts “split-enforcement” regime, the NTSB is required to defer to the FAA’s sanction determination if it is reasonable.  Although the NTSB said that it deferred to the FAA’s choice of sanction, it adjusted the sanction without finding that it was unwarranted in law or without justification in fact.  FAA regulations provide that an airman who has refused a drug test in the preceding two years is automatically ineligible to hold a medical certificate, and because NTSB can’t invalidate FAA regulations, it was required to apply them.   

Stay tuned for a potentially busy second-half of May!

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