When the Regulator Becomes the Adversary

A medical certificate is supposed to answer a medical question.

Is this pilot medically qualified to fly?

But what happens when the answer appears to depend on something that is not medical at all—such as whether the pilot is challenging the Federal Aviation Administration in court?

That question is no longer theoretical.

Pilots for HIMS Reform has reviewed extensive correspondence involving pilot Martin A. Barnard, his congressional office, the FAA medical-certification system, and complaints submitted to federal oversight channels.

Barnard alleges that despite years of documented abstinence, extensive negative testing, continued military aviation qualification, and no identified current medical condition that independently prevents certification, the FAA has indicated that it will not issue him medical certification while his litigation against the agency remains pending.

His congressional correspondence is now prompting an effort to determine what happened to two Inspector General complaints he submitted in September 2025 and whether those complaints were ever independently investigated.

Those allegations have not been adjudicated, and P4HR does not present retaliation as an established fact.

A deep examination of federal law, FAA regulations, decades of aviation case law, recent congressional action, and current FAA oversight reveals something important.

The Regulation Says Something Important

Start with the law itself.

Under 49 U.S.C. § 44703(a), Congress directed that the FAA Administrator “shall issue” an airman certificate when, after investigation, the individual is qualified and physically able to perform the duties authorized by the certificate.

That language does not eliminate medical judgment. But neither does it describe certification as an unrestricted favor that the government may grant or withhold for reasons unrelated to qualification.

Part 67 then establishes the medical standards.

For a First-Class Medical Certificate, 14 C.F.R. § 67.107 addresses substance dependence directly.

Critically, the regulation does not say that anyone who has ever been diagnosed with substance dependence is permanently disqualified.

Instead, § 67.107(a)(4) expressly contains a recovery exception. A history or diagnosis of substance dependence does not remain disqualifying 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.

Equivalent provisions appear in the standards governing Second- and Third-Class certificates.

Barnard's congressional correspondence states that he has accumulated nearly six years of documented abstinence, more than 100 negative toxicology and alcohol-biomarker tests, continued United States Air Force medical qualification, and continued service as a KC-135 instructor pilot.

He further states that the FAA has failed to identify a present Part 67 medical condition that independently disqualifies him or an objective standard that he can satisfy to reach unrestricted certification.

Those are Barnard's assertions and must ultimately be tested against the complete medical and administrative record. But they frame the legal question precisely.

• If additional recovery evidence is required, identify the evidence.
• If a measurable standard has not been satisfied, identify the standard.
• If continued monitoring is medically necessary, explain why.
• If an individualized determination has been made, identify the facts supporting it.

But if the obstacle is instead the existence of litigation against the FAA, where is that criterion found in Part 67?

P4HR has identified no provision of Part 67 making the exercise of an airman's right to administrative or judicial review a medical disqualification.

Special Issuance Is Discretionary. Medical Standards Are Still Standards.

The FAA has another pathway available when an applicant does not meet the ordinary Part 67 standards.

Under 14 C.F.R. § 67.401, the Federal Air Surgeon may issue an Authorization for Special Issuance when an applicant does not meet the unrestricted standards but demonstrates that the duties authorized by the certificate can nevertheless be performed without endangering public safety.

Unlike the basic certification command in § 44703, § 67.401 expressly speaks in terms of Federal Air Surgeon discretion.

That distinction matters.

A Special Issuance is not the same thing as determining that a pilot now satisfies the ordinary medical standards.

Indeed, the FAA itself explains that denial means an applicant does not meet the unrestricted standards of Part 67 and that Special Issuance may provide a separate pathway. See FAA Medical Certification.

The FAA's public HIMS guidance does not provide a particularly satisfying answer.

Its current HIMS materials establish lengthy monitoring phases. FAA guidance provides that movement into an advanced phase generally requires years of successful Special Issuance monitoring, while movement into a maintenance phase ordinarily occurs still later. The FAA also reserves authority to alter those requirements or retain a pilot in an earlier phase.

See the FAA's Substances of Dependence/Abuse guidance.

Those documents describe how monitoring can decrease.

They do not establish a clear, objective, universally applicable endpoint for unrestricted certification.

That is striking because the actual regulation contains an explicit recovery provision beginning at two years.

Again, two years is a minimum, not an automatic entitlement. Recovery must be established to the Federal Air Surgeon's satisfaction.

More Than Forty Years Ago, the D.C. Circuit Drew a Line

This is not the first time federal courts have examined the limits of FAA medical authority.

That principle was articulated in 1983.

It remains relevant in 2026.

What Happens When Medical Action Follows Litigation?

The case most directly resembling the concern Barnard now raises came decades later.

Schramm therefore does not establish that the FAA retaliated through medical certification.

But it does undermine any suggestion that medical-certification action is categorically incapable of functioning as an adverse retaliatory act.

Barnard's situation presents a potentially important factual distinction.

According to his correspondence, there is no question that senior FAA medical officials know about his litigation. The litigation itself is the very proceeding in which his medical qualification is being contested.

Barnard says the unresolved appeal is being cited in connection with the FAA's refusal to certify him.

Whether that can ultimately be proven as retaliation is a different question.

But the factual problem that defeated Schramm—lack of evidence that the medical decision-maker knew litigation existed—would not necessarily be the same issue here.

Litigation Is Not a Favor Granted by the Government

There is a broader constitutional issue as well.

The First Amendment protects the right “to petition the Government for a redress of grievances.”

That protection is not limited to writing letters to Congress.

The Supreme Court has repeatedly recognized genuine litigation as a form of petitioning activity.

In BE&K Construction Co. v. NLRB, the Court emphasized that even unsuccessful but reasonably based litigation implicates significant First Amendment interests.

More recently, in NRA v. Vullo, the Supreme Court unanimously reaffirmed another important principle: government regulators cannot wield governmental power selectively to punish or suppress protected expression.

Vullo was not an FAA case and did not involve medical certification. It involved a New York financial regulator and alleged pressure placed upon regulated financial institutions because of the NRA's advocacy.

But the broader constitutional warning is relevant: regulatory authority does not create a constitutional exemption.

Government officials may regulate. They may enforce lawful standards. They may disagree with the people they regulate.

That is why Barnard's allegations require independent examination rather than dismissal as simply another medical disagreement.

Then Came Solondz

If anyone believes these concerns belong entirely to cases from the 1980s, the D.C. Circuit provided a very recent reminder.

Solondz does not decide anything about substance dependence or retaliation.

But it stands for a broader proposition that matters greatly to P4HR:

Categorical aeromedical policy still requires a rational connection between the evidence and the rule being applied.

Individual circumstances still matter.

And federal courts can—and do—review the FAA's medical reasoning.

Agencies Cannot Simply Ignore Their Own Precedent

Another aviation case reinforces the same institutional concern.

That principle matters far beyond the specific facts of Manin.

Administrative agencies accumulate tremendous institutional power because they investigate, interpret, regulate, prosecute, and often participate in adjudicating disputes arising from their own regulatory systems.

The rule of law therefore depends heavily upon consistency, transparency, reasoned explanation, and meaningful outside review.

Congress Has Already Told the FAA What Medical Certification Should Look Like

Congress has not been silent about these concerns.

The 2012 Pilot's Bill of Rights specifically addressed FAA medical certification and required examination of whether FAA medical qualification policies reflected present-day qualified medical judgment applied to an individual's medically relevant circumstances.

Congress further emphasized appropriate and fair evaluation and the importance of airmen understanding the basis for medical-qualification decisions.

Twelve years later, Congress went further.

The FAA Reauthorization Act of 2024 required creation of an Airman's Medical Bill of Rights.

Among the protections Congress required was the ability to report alleged AME misconduct without fear of retaliation or negative action affecting the individual's airman certificate.

The FAA subsequently implemented the Medical Examination Bill of Rights.

That provision specifically concerns reporting AME misconduct. It does not itself decide Barnard's dispute.

But its existence demonstrates something important.

The FAA Says It Wants a Non-Punitive System

The contrast becomes even sharper when measured against the FAA's own recent statements.

In early 2025, Federal Air Surgeon Dr. Susan Northrup wrote that the Office of Aerospace Medicine was working to change its relationship with the pilot community, reduce fear surrounding mental-health treatment, and explore a non-punitive pathway for disclosure.

Those are worthwhile goals.

P4HR supports them.

But a genuinely non-punitive system cannot depend merely upon assuring pilots that the system is non-punitive.

It must contain structural safeguards preventing medical discretion from becoming punishment.

• Objective medical standards.
• Written reasons for adverse decisions.
• Predictable decision timelines.
• Meaningful independent review.
• Transparent monitoring requirements.
• Published step-down and exit criteria.
• A clear separation between medical judgment and disputes over a pilot's exercise of legal rights.

The Inspector General Is Already Looking at HIMS

Meanwhile, Barnard says he filed two DOT/FAA OIG complaints on September 25, 2025.

By August 2026, he reported receiving no substantive resolution and no indication whether the matters had been investigated, referred, or closed.

Congressman Jim Jordan's constituent-services office subsequently indicated that it could contact the DOT OIG liaison to inquire further.

Congressional correspondence reviewed by P4HR also reflects a warning that prior attempts involving agency liaison channels can lead back to the same agency representatives and substantially the same answers.

The Oversight Loop

This is one of P4HR's central concerns.

• 1 A pilot challenges an FAA medical decision. The dispute begins inside the same medical-certification system that produced the decision.
• 2 The pilot asks the FAA to reconsider. The matter moves through FAA medical channels and agency personnel.
• 3 FAA attorneys defend the FAA's position. The medical disagreement becomes an adversarial legal dispute.
• 4 The pilot seeks NTSB review. The FAA litigates against the pilot before an independent administrative tribunal.
• 5 The pilot alleges misconduct or arbitrary treatment. Complaints may then move through additional federal or agency-linked oversight channels.
• 6 The medical certificate remains essential to the pilot's livelihood. Administrative delay itself can therefore carry enormous practical consequences.

No sinister conspiracy is required for such a structure to become problematic.

Institutional incentives alone can create an environment in which defending the previous agency decision becomes more important than reconsidering whether the previous decision was correct.

That is precisely why independent tribunals, inspectors general, congressional oversight, judicial review, and transparent standards exist.

• 1982 Beins Courts examine whether FAA medical decisions are properly tied to the applicant's actual medical condition and governing standards.
• 1983 Harr A federal appellate court warns against FAA medical decision-making that unnecessarily frustrates independent review.
• 2009 Schramm FAA medical disqualification is treated as the type of adverse action capable of supporting a retaliation theory, although the plaintiff fails to prove decision-maker knowledge.
• 2011 Manin The aviation adjudicatory system is reversed for departing from precedent without adequate explanation.
• 2025 Solondz The D.C. Circuit holds an FAA aeromedical denial arbitrary and capricious because the agency fails to adequately explain a categorical policy.
• 2026 A new dispute Another pilot alleges that his certification has effectively become connected to the status of litigation challenging the agency.

At the same time, Congress has enacted medical-certification reforms emphasizing fairness and protection from retaliation.

The FAA says it wants a non-punitive culture.

And the Department of Transportation Inspector General is conducting a congressionally requested audit of FAA oversight of HIMS.

The FAA Has a Straightforward Way to Answer

The solution does not require weakening aviation safety.

Quite the opposite.

• If a pilot remains medically unsafe, the FAA should say so and support that conclusion with appropriate medical evidence.
• If a pilot needs continued monitoring, identify why.
• If an objective factor remains unfavorable, identify it.
• If a particular medical criterion has not been satisfied, state the criterion and explain how it applies.
• If individualized evidence is being rejected, explain why.
• If the agency believes pending litigation lawfully prevents certification, identify the statute or regulation producing that result.

And if a pilot has satisfied the medical standards, then certification should no longer depend upon whether that pilot is agreeable, compliant, politically convenient, publicly silent, or willing to abandon a legal challenge.

A medical-certification system commands confidence only when pilots believe that medical decisions are actually medical decisions.

Barnard's case may ultimately be resolved on facts unique to him.

That is how individualized medical certification is supposed to work.

But the broader question cannot disappear with one pilot's case.

The law already provides important guideposts.

• Congress says qualified airmen are to be certified.
• Part 67 expressly recognizes recovery from substance dependence.
• Federal courts have required reasoned medical decision-making.
• Federal courts have rejected unexplained departures from precedent.
• Federal courts have held inadequately explained aeromedical policies unlawful under the Administrative Procedure Act.
• The First Amendment protects genuine petitions to government.
• Congress has demanded greater fairness and protection from retaliation within the aeromedical system.
• The DOT Inspector General is now examining FAA oversight of HIMS.

P4HR believes the next step is equally clear.

These questions deserve independent answers.

Not another circular referral.

Not another unpublished standard.

Not another moving target.

And not another instruction for a pilot to simply trust the process.