Labor & Employment Law Daily Wrap Up, ATTORNEYS’ FEES—D.C. Cir.: Commercial pilot denied attorneys’ fees despite reduction of FAA certificate revocation to suspension, (Aug 20, 2026)

By Mandavi Singh, LL.M.

The FAA was substantially justified in pursuing revocation after a pilot tested positive for amphetamine, even though he ultimately proved accidental ingestion and obtained a reduced 90-day suspension.

A commercial pilot who successfully reduced the FAA’s revocation of his aviation certificates to a 90-day suspension was not entitled to attorneys’ fees and expenses under the Equal Access to Justice Act (EAJA). Denying the pilot’s petition for review of an NTSB order, the D.C. Circuit found substantial evidence supported the Board’s determination that the FAA was substantially justified in seeking revocation throughout the administrative proceedings. Although the pilot ultimately proved that he accidentally ingested his son’s prescription medication containing amphetamine, the FAA had a reasonable basis to initiate proceedings, require him to prove accidental ingestion, and continue seeking revocation after an ALJ reduced the sanction (Knight v. National Transportation Safety Board, No. 25-1158 (D.C. Cir. Aug. 18, 2026)).

Positive drug test. The pilot worked for a California aviation company when he was selected for a random drug test in December 2018. The test came back positive for amphetamine, and his employer removed him from safety-sensitive functions. He later completed DOT’s return-to-duty process and was reinstated as assistant chief pilot.

The pilot explained that he had inadvertently taken his son’s Vyvanse instead of his own cholesterol medication while dealing with his son’s medical emergency. He submitted medical records and photographs showing similarities between the medication bottles. Nonetheless, the FAA issued an Emergency Order of Revocation seeking revocation of his airline transport pilot, ground instructor, and medical certificates. Federal aviation regulations prohibit performing a safety-sensitive function with a prohibited drug in the individual’s system, and FAA guidance generally calls for revocation for such conduct.

ALJ hearing. At a hearing, the pilot testified that stress, lack of sleep, a recent move, and similar medication bottles led to the mistake. His wife corroborated the circumstances, and other witnesses testified about his credibility and character. The ALJ nevertheless found that the FAA proved he had been available to perform safety-sensitive functions with amphetamine in his system and that he had not established accidental ingestion by a preponderance of the evidence. The ALJ, however, found revocation inappropriate and reduced the sanction to a 90-day suspension.

On cross-appeals, the NTSB went further in the pilot’s favor, finding that he had established accidental ingestion. Still, it noted aggravating circumstances: after realizing that he had taken Vyvanse, the pilot did not notify his employer or ground himself before reporting for duty. Balancing those circumstances against the accidental ingestion, the Board upheld the 90-day suspension.

Attorneys’ fees. The pilot subsequently sought attorneys’ fees and expenses under the EAJA. An ALJ granted his application, but the NTSB reversed. Although the Board agreed that the pilot qualified as a “prevailing party” because he obtained a substantially reduced sanction, it found that the FAA’s position had been “substantially justified.”

Reviewing that determination, the D.C. Circuit explained that its inquiry was narrowly confined to whether substantial evidence supported the Board’s decision. Quoting Pierce v. Underwood, 487 U.S. 552 (1988), the court noted that under the EAJA, an agency's position is “justified in substance or in the main—that is, justified to a degree that could satisfy a reasonable person.” The court assumed without deciding that it should examine the reasonableness of the FAA’s position at each successive stage of the proceedings rather than merely assessing the agency’s position as a whole. Even under that more demanding approach, the FAA satisfied the standard.

Initial revocation. Substantial evidence first supported the Board’s conclusion that the FAA was justified in issuing the emergency revocation order. The pilot’s positive test established a factual basis for finding that he had performed, or was available to perform, a safety-sensitive function with amphetamines in his system in violation of 14 C.F.R. § 120.33(b). FAA guidance also provided that a single instance of performing a safety-sensitive function with a prohibited drug in the system generally warranted revocation.

The pilot argued that the FAA already knew before issuing the order that his ingestion of Vyvanse had been accidental. But his communication to the agency merely informed it that he intended to claim accidental ingestion and provided his account of how the mistake occurred. Knowing that a certificate holder asserted accidental ingestion was different from knowing that the ingestion was accidental, the court explained. Requiring the FAA to accept every such assertion without adjudication could undermine the drug-testing program and aviation safety.

Hearing justified. The FAA also had substantial justification for requiring the pilot to prove accidental ingestion by a preponderance of the evidence. The court explained that “affirmative defense” was somewhat of a misnomer in this context because accidental ingestion does not eliminate the underlying regulatory violation. Instead, it functions as a mitigating consideration that can justify a sanction less severe than revocation.

The parties had stipulated that the pilot’s test was positive, that there was no evidence he knowingly or intentionally ingested his son’s Vyvanse, and that there was no evidence he was impaired. Those stipulations, however, did not establish that the ingestion was accidental. Resolving that question required evaluating the pilot’s account and the evidence supporting it.

The court found particularly significant that the accidental-ingestion claim depended on credibility determinations that could not reasonably be made without a hearing. The pilot relied on his own testimony, his wife’s account, medical records, photographs, a drug counselor, and several character witnesses. The Board ultimately relied on the ALJ’s finding that the pilot was credible when it concluded that he had established accidental ingestion. Thus, even though the defense ultimately succeeded, the need for credibility findings supported the FAA’s decision to pursue the proceeding rather than accept the pilot’s explanation at face value.

Continued revocation request. Nor did the FAA lose substantial justification when it appealed the ALJ’s reduction of the sanction and continued seeking revocation. The agency’s eventual loss on the appropriate sanction did not automatically entitle the prevailing party to EAJA fees. As FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986), recognized, the substantial-justification requirement prevents prevailing parties from automatically recovering fees.

FAA guidance generally prescribes revocation for performing a safety-sensitive function with a prohibited drug in the system. Further, under Pham v. NTSB, 33 F.4th 576 (D.C. Cir. 2022), the Board generally must defer to the FAA’s choice of sanction unless it is unwarranted in law or without justification in fact. Thus, the FAA had a reasonable legal basis for continuing to seek revocation.

The record provided factual justification as well. The pilot acknowledged reporting for work after realizing he had taken his son’s Vyvanse and knowing it was similar to amphetamine, without notifying his employer or ensuring the substance was no longer in his system. Moreover, the ALJ found that he violated the regulation and failed to prove accidental ingestion.

The pilot relied on two nonprecedential ALJ decisions in which accidental ingestion resulted in reduced sanctions that the FAA did not appeal. But those certificate holders had proved accidental ingestion before the ALJ, and the decisions were not binding precedent. Nor did the FAA’s decision not to appeal those cases establish an agency policy.

Accordingly, substantial evidence supported the NTSB’s determination that the FAA remained substantially justified throughout the proceedings, and the court denied the pilot’s petition for EAJA attorneys’ fees and expenses.

The case is No. 25-1158.

Judge: Childs, J.

Attorneys: Elizabeth Vasseur-Browne (Cooling & Herbers) for James K. Knight. Jessica E. Kabaz-Gomez, Office of the Chief Counsel, for National Transportation Safety Board and Federal Aviation Administration.

Cases: AttorneysFees DistrictofColumbiaNews