NTSB Judge Orders FAA to Disclose Recovery Criteria Following Federal Air Surgeon’s Oshkosh Remarks

The August 14 order follows an unusual sequence of events that began with a public exchange involving Federal Air Surgeon Dr. Susan Northrup at EAA AirVenture Oshkosh 2026.

For pilots navigating the FAA’s substance-dependence certification system, the ruling could help answer a question that has persisted for years:

What does an airman actually have to demonstrate to satisfy the FAA that recovery has occurred—and obtain an unrestricted medical certificate?

The FAA must now provide answers.

PRIMARY SOURCE

Read the NTSB Order

On August 14, 2026, Administrative Law Judge V. Stuart Couch issued the Order on Petitioner’s Motion to Compel Discovery in Petition of Maurice MacEwen, NTSB Docket No. SM-31029.

The Court granted the motion in part, finding that Dr. Susan Northrup’s statements at AirVenture Oshkosh provided good cause for limited additional discovery concerning the Federal Air Surgeon’s determination of recovery under 14 C.F.R. § 67.107(a)(4).

Read the August 14, 2026 NTSB Order (PDF)

Primary source: National Transportation Safety Board, Office of Administrative Law Judges, NTSB Docket No. SM-31029, Order entered August 14, 2026.

The Oshkosh Exchange

On July 23, 2026, Dr. Northrup participated in an AOPA presentation titled Mental Health and Your Medical: What Pilots Need to Know at AirVenture Oshkosh.

During the question-and-answer portion, an attorney representing pilots raised the language of the FAA’s medical standards governing substance dependence.

Under 14 C.F.R. § 67.107(a)(4), a history or clinical diagnosis of substance dependence is generally disqualifying for a First-Class medical certificate, except where there is:

“established clinical evidence, satisfactory to the Federal Air Surgeon, of recovery,”

including sustained total abstinence for at least the preceding two years.

The questioner contrasted that regulatory language with his experience attempting to identify pilots who had actually obtained unrestricted certification following a substance-dependence diagnosis.

He ultimately asked Dr. Northrup directly:

“As it exists today, you cannot ever submit significant enough evidence to show recovery to your satisfaction to get it unrestricted once you have a substance diagnosis, right?”

Dr. Northrup responded:

“That is where we are at the moment, but we are looking at it.”

Earlier in the exchange, after the questioner encouraged the FAA to consider rulemaking on the issue, Dr. Northrup said the subject was “on my list.”

The exchange was recorded by an attendee, Mike Braun, who subsequently executed a declaration stating that he personally witnessed and recorded it and that the recording accurately reflected the exchange.

The Statement Becomes Evidence in an NTSB Appeal

The Oshkosh exchange soon became relevant in a pending NTSB medical-certificate appeal, Petition of Maurice MacEwen, NTSB Docket No. SM-31029.

MacEwen is challenging the FAA’s denial of his application for an unrestricted airman medical certificate.

Because ordinary fact discovery had already closed before the July 23 Oshkosh presentation occurred, MacEwen asked Administrative Law Judge V. Stuart Couch for permission to conduct limited supplemental discovery concerning Northrup’s statement.

Following an August 4 motion hearing, MacEwen submitted the authenticated recording, a certified transcript and Braun’s declaration, together with proposed supplemental discovery directed at the meaning of Northrup’s remarks, the FAA’s recovery criteria, the availability of unrestricted certification following substance dependence, and whether those standards had been applied in MacEwen’s case.

The FAA opposed the request.

FAA: Unrestricted Certificates Are Being Issued

In its August 13 opposition, the FAA argued that much of the proposed discovery duplicated earlier requests and that the proceeding is a de novo determination of MacEwen’s present medical qualifications rather than an examination of the FAA’s internal administrative decision-making process.

But the FAA also made an important substantive representation.

Responding to the apparent implication of the Oshkosh exchange, FAA counsel stated that the Office of Aerospace Medicine does, in fact, issue unrestricted medical certificates to individuals with a history or diagnosis of substance dependence when those individuals demonstrate satisfactory recovery.

The FAA attached a heavily redacted July 14, 2026 letter as an example.

That letter informed an unidentified airman that the FAA had reviewed the individual's medical file and determined that monitoring reports could be discontinued. It enclosed a First-Class medical certificate and stated that future First-Class certificates could be issued by an Aviation Medical Examiner if the individual was otherwise qualified.

Because significant information is redacted, however, the publicly filed letter does not independently reveal the underlying diagnosis or the particular clinical evidence and criteria upon which the FAA relied.

One day after the FAA filed its opposition, Judge Couch ruled.

Judge Finds Good Cause for Additional Discovery

In an August 14 written order, Judge Couch granted MacEwen’s motion in part. P4HR has posted the complete three-page order so readers can review the Court’s ruling directly.

The Court expressly found that Northrup’s Oshkosh statements justified additional discovery under the circumstances:

“The Court finds that, considering Dr. Northrup’s statements during the AOPA presentation at Oshkosh, Petitioner is entitled to limited additional discovery under the unique circumstances of this case.”

The Court emphasized the importance of discovery in medical-certificate appeals and cited the NTSB’s earlier decision in Petition of Seiler.

Quoting that authority, the Court observed that denial of a medical certificate constitutes an agency determination and that the FAA is therefore chargeable with knowledge of the bases for its decisions. Such knowledge, the Court explained, is discoverable before the Board and may be vital to providing a petitioner a fair hearing.

After reviewing the Oshkosh video and transcript, Judge Couch concluded:

“good cause exists for discovery limited to the FAS’s determination of Petitioner’s recovery under 14 C.F.R. § 67.107(a)(4).”

The Court did not grant everything MacEwen requested. It rejected a deposition or written declaration from Northrup and cautioned that supplemental discovery would not become a broader “fishing expedition.”

Instead, Judge Couch fashioned his own tightly focused discovery.

And the questions he ordered the FAA to answer go directly to the operation of the recovery standard.

What Does “Recovery” Actually Require?

The first court-ordered interrogatory requires the FAA to state what criteria the Federal Air Surgeon considers when determining whether an airman with a history or clinical diagnosis of substance dependence may receive an unrestricted First-Class certificate under § 67.107(a)(4).

Judge Couch then made the question considerably more specific.

The FAA must 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[.]’”

That question goes to an issue extending beyond one individual appeal.

The regulation establishes a minimum abstinence period, but the Court is now requiring the FAA to identify the additional factors the Federal Air Surgeon actually considers when determining whether recovery is satisfactory.

What Was Applied to MacEwen?

The second interrogatory turns from the general standard to its application.

In light of Northrup’s Oshkosh statements, the FAA must state whether any factors other than those identified in its first answer were considered by Northrup when evaluating MacEwen’s eligibility for unrestricted certification.

The Court also ordered production of previously undisclosed documents identifying the criteria or factors disclosed through those answers that were actually applied in determining whether MacEwen satisfied § 67.107(a)(4).

That creates a potentially important comparison.

The FAA must first identify the factors the Federal Air Surgeon says constitute satisfactory recovery.

It must then address whether anything different or additional was considered in MacEwen’s case.

And it must produce previously undisclosed documents identifying relevant criteria or factors actually applied to his determination.

The FAA Must Also Provide a Number

The third interrogatory may have significance beyond the individual case.

Judge Couch ordered the FAA to state:

“For the period April 22, 2024, through the present, state the number of airmen with a history or clinical diagnosis of substance dependence who were issued unrestricted airman medical certificates based upon established clinical evidence of recovery under 14 C.F.R. § 67.107(a)(4).”

That means the question raised publicly at Oshkosh—whether pilots actually obtain unrestricted certification after demonstrating recovery—will now receive an answer from the FAA in formal discovery.

The answer could be informative regardless of the number.

If unrestricted certificates have been issued, the FAA’s answers concerning the criteria for satisfactory recovery may provide greater insight into how that pathway operates.

If very few—or none—have been issued during the period specified by the Court, that result may raise additional questions concerning how the regulatory recovery provision functions in practice.

The Court has not prejudged either possibility. Nor has it determined that the FAA maintains a categorical policy against unrestricted certification.

Instead, it has ordered the FAA to provide information capable of answering the question with evidence.

What the Order Does—and Does Not—Decide

The August 14 order is a discovery ruling, not a decision on the ultimate merits of MacEwen’s medical appeal.

MacEwen continues to bear the burden of demonstrating that he is medically qualified for the unrestricted certificate he seeks. Judge Couch specifically reiterated that principle in his order.

The Court has not ruled that Northrup’s Oshkosh statement establishes an unlawful FAA policy.

It has not ruled that every pilot with a substance-dependence diagnosis is entitled to unrestricted certification after two years.

And it has not ruled that MacEwen has satisfied § 67.107(a)(4).

What the Court has determined is significant in its own right:

After reviewing the recording and transcript of the Federal Air Surgeon’s public remarks, the judge found sufficient good cause to require the FAA to disclose additional information concerning the Federal Air Surgeon’s recovery determination.

The Administrator must provide the ordered supplemental discovery no later than August 26, 2026.

Why P4HR Is Watching

For Pilots for HIMS Reform, the importance of this development extends beyond the outcome of a single appeal.

One of the recurring concerns surrounding long-term HIMS participation is whether pilots have a sufficiently clear, objective and attainable understanding of what is required to progress from monitored or Special Issuance certification to unrestricted medical certification.

Section 67.107(a)(4) expressly contemplates recovery.

But simply knowing that recovery is legally possible is not the same as knowing how the FAA determines that recovery has been established to the Federal Air Surgeon’s satisfaction.

Judge Couch’s order now requires the FAA to address that distinction directly.

Those are factual questions.

By August 26, the FAA has been ordered to begin answering them.

P4HR will continue following the proceeding and will report on the FAA’s responses when they become part of the record.