Follow-Up to Our August 20 Report
The FAA Disclosed Recovery Factors. It Still Left the Door Open.
Two days after Pilots for HIMS Reform published the FAA’s newly disclosed recovery criteria, the dispute over what those criteria actually are has moved another step forward.
On August 20, the FAA responded to an order from NTSB Administrative Law Judge V. Stuart Couch requiring the agency to explain what the Federal Air Surgeon considers when determining whether a pilot with a history or clinical diagnosis of substance dependence has demonstrated “satisfactory” recovery for an unrestricted medical certificate.
The FAA identified 17 recovery-related considerations. But it expressly described the list as “non-exhaustive.”
That qualification has now become the center of the dispute.
On August 22, petitioner Maurice MacEwen formally notified FAA counsel Trent Rehusch that he considers the response incomplete and requested that the agency cure the deficiencies by Judge Couch’s August 26 compliance deadline.
The issue is no longer whether the FAA disclosed some recovery criteria. It did. The issue is whether the FAA actually disclosed all of the criteria Judge Couch ordered it to identify — and all of the factors actually applied in MacEwen’s individual case.
The Court’s Order
What Judge Couch Actually Required
Judge Couch’s August 14 order authorized a narrow and unusually specific set of supplemental discovery concerning the Federal Air Surgeon’s interpretation of the recovery exception in 14 C.F.R. § 67.107(a)(4).
“State what criteria the FAS considers in her determination that an airman with a history or clinical diagnosis of substance dependence may receive an unrestricted First-Class medical certificate under 14 C.F.R. § 67.107(a)(4).”
NTSB Order, Interrogatory No. 1 — August 14, 2026
The Court then became even more specific, directing the FAA to:
“identify what other factors than 2 years total abstinence are considered in her determination of ‘established clinical evidence, satisfactory to the Federal Air Surgeon, of recovery[.]’”
NTSB Order, Interrogatory No. 1
Then came Interrogatory No. 2:
“state whether any factors other than those described in Interrogatory 1 were considered by Dr. Northrup when she evaluated Petitioner’s eligibility for unrestricted medical certification.”
NTSB Order, Interrogatory No. 2
That second question is important. It does not merely ask whether the factors identified in the first answer were considered. It asks whether anything else was considered.
The Remaining Ambiguity
The FAA’s Answer Does Not Close the Loop
The FAA responded by identifying numerous considerations involving abstinence, treatment history, psychological development, social and vocational progress, continuing recovery contacts, evaluations, monitoring and other factors.
“No one factor is determinative and there is no set formula or checklist.”
Administrator’s August 20, 2026 Supplemental Discovery Response
But the FAA characterized its list as “non-exhaustive.”
A non-exhaustive list, by definition, does not represent the complete universe of possible considerations. It leaves open the existence of additional factors that have not been identified.
That may be understandable in a broad discussion of clinical medicine. It is considerably more problematic when the Court expressly ordered the agency to identify the criteria used in making this particular regulatory determination.
What the Court Asked
Were any factors other than those described in Interrogatory No. 1 considered in MacEwen’s evaluation?
What the FAA Said
“The FAS’s office considered the above factors in evaluating Petitioner’s eligibility for an unrestricted medical certificate.”
Those are not necessarily the same answer.
Why Interrogatory No. 2 Matters
The Current Response Leaves at Least Three Possibilities
The Court’s second interrogatory appears designed to distinguish among those possibilities. The FAA’s current response does not clearly do so.
Formal Notice to FAA Counsel
The FAA Has Now Been Asked to Answer Directly
MacEwen’s August 22 correspondence asks the FAA to eliminate that uncertainty before the Court-ordered deadline.
The requested clarification is narrow. If additional factors were considered, identify them. If none were considered, say so.
The Warning
Supplement the Response — or Defend It Before Judge Couch
The August 22 letter also puts FAA counsel on notice that continued ambiguity will be presented to Judge Couch.
“If the Administrator maintains that its existing response constitutes full compliance with Judge Couch’s August 14 Order, please state that position expressly. In that event, I will present the matter to Judge Couch and request enforcement of the Court’s order.”
MacEwen correspondence to FAA counsel — August 22, 2026
The letter expressly states that the request is not an attempt to reopen general discovery or expand Judge Couch’s ruling. It seeks complete answers to discovery the Court has already ordered.
Document Production
The Document Question Also Remains
Judge Couch also ordered the FAA to produce:
“any previously undisclosed documents which identify the criteria or factors referred to in the responses to Interrogatories 1 and 2 above that were applied in determining whether Petitioner satisfied 14 C.F.R. § 67.107(a)(4).”
NTSB Order — August 14, 2026
As P4HR reported on August 20, the FAA did not identify a newly produced internal checklist, decision matrix, evaluation worksheet or other case-specific document showing how the disclosed criteria were applied.
Instead, the agency pointed largely to historical Federal Register materials from 1982 and 1996.
The August 22 letter therefore asks the FAA to identify and produce any responsive document reflecting the criteria or factors actually applied in MacEwen’s determination. If no additional responsive document exists, the FAA has been asked to say so expressly.
Again, the clarification is straightforward: either such documentation exists, or it does not.
Why “Non-Exhaustive” Matters
This Is Not Just a Technical Discovery Dispute
The governing regulation does not simply require two years of abstinence. It requires “established clinical evidence, satisfactory to the Federal Air Surgeon, of recovery.”
The meaning of “satisfactory” therefore matters enormously.
If the FAA denies unrestricted certification because an airman has not demonstrated satisfactory recovery, pilots need to know what evidence is actually being evaluated.
The August 20 disclosure was significant because, for the first time in this litigation, the FAA identified a substantial collection of factors that it says inform that determination.
But calling those factors “non-exhaustive” creates another unavoidable question.
What else is there?
If nothing else was considered in MacEwen’s case, the FAA can say so.
If additional criteria were considered, those criteria can be identified.
If the FAA maintains that the universe of potential criteria cannot be fully identified at all, that raises a broader transparency question about how an airman can know what constitutes satisfactory recovery.
The Record Now Being Created
The FAA Has an Opportunity to Cure the Ambiguity Before Court Intervention
The FAA has now been formally notified of the claimed deficiencies before the Court’s August 26 deadline.
If the FAA supplements its response, the remaining ambiguity may be resolved without additional motion practice.
If it does not, the dispute becomes considerably simpler for the Court:
Judge Couch ordered a specific answer.
The FAA provided an expressly non-exhaustive response.
The petitioner asked the FAA to clarify whether anything else was considered.
The FAA either answers that question — or it does not.
P4HR Analysis
P4HR’s View
Pilots for HIMS Reform believes the FAA should answer these questions completely and without qualification.
This is not a request for private medical information concerning other pilots. It is not a demand that the FAA reduce complex medicine to a mathematical equation. And it is not an effort to substitute P4HR’s medical judgment for the Federal Air Surgeon’s.
It is a much simpler proposition:
If the federal government uses criteria to determine whether a pilot has demonstrated satisfactory recovery, the pilot should be able to know what those criteria are.
And when an NTSB administrative law judge expressly orders the agency to identify those criteria and state whether additional factors were applied in an individual case, the answer should not leave another undisclosed category of criteria hanging in the background.
“Non-exhaustive” may be appropriate when providing examples.
It is considerably less satisfying when responding to a court order asking what criteria were actually considered.
What Happens Next
The Next Deadline Is August 26
The Administrator’s court-ordered deadline for supplemental discovery is August 26, 2026.
FAA counsel has now been asked to cure the identified deficiencies by that date.
If the agency supplements its response, P4HR will review and publish the additional information.
If the FAA maintains that its current “non-exhaustive” response fully complies with Judge Couch’s order, the issue may return to the NTSB for enforcement.
Did the FAA disclose all of the factors it actually used?
Pilots deserve a clear answer.
Primary Source Documents
Review the Record Directly
P4HR encourages pilots, physicians, attorneys, policymakers and other interested readers to examine the underlying documents rather than relying solely on our analysis.
Disclosure: Maurice MacEwen, the petitioner in Petition of Maurice MacEwen, NTSB Docket No. SM-31029, is a co-founder of Pilots for HIMS Reform. P4HR therefore has an organizational relationship with the petitioner discussed in this article.
This article reflects P4HR’s review and analysis of materials relating to the pending proceeding. Judge Couch has not adjudicated the FAA’s August 20 supplemental response as deficient, and P4HR does not represent that the Court has found the Administrator in violation of its August 14 order. The issue presently raised is whether the Administrator’s response fully answers the questions the Court directed it to answer.