UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

REGENCY AIR, LLC, No. 20-72084 Petitioner, FAA No. v. FAA-2017-0602

STEPHEN M. DICKSON, Administrator of the FAA; FEDERAL AVIATION OPINION ADMINISTRATION, Respondents.

On Petition for Review of an Order of the Federal Aviation Administration

Argued and Submitted May 14, 2021 Pasadena, California

Filed July 1, 2021

Before: Ryan D. Nelson and Kenneth K. Lee, Circuit Judges, and Sidney H. Stein, * District Judge.

Opinion by Judge R. Nelson

* The Honorable Sidney H. Stein, United States District Judge for the Southern District of New York, sitting by designation. 2 REGENCY AIR V. DICKSON

SUMMARY **

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

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 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.

COUNSEL William J. Ingalsbe (argued), Monteleone & McCrory LLP, Los Angeles, California, for Petitioner. Brett D. Weingold (argued), Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C., for Respondents.

OPINION R. NELSON, Circuit Judge:

The Federal Aviation Administration (“FAA”) requires air carriers to test each employee for drug and alcohol misuse if performing a safety-sensitive function like plane maintenance. 14 C.F.R. §§ 120.35, 120.39, 120.105(e), 120.215(a)(5). An ALJ found that Regency Air, LLC had violated these regulations and imposed civil penalties. The FAA Administrator affirmed, increasing the penalty consistent with FAA sanction guidance. We see no reason to reverse, and we deny the petition. 4 REGENCY AIR V. DICKSON

I

A

To ensure safe air travel, Congress directed the FAA to regulate drug and