MacEwen v. FAA: What the NTSB Summary-Judgment Ruling Says — and What It Leaves Unresolved
The September 28 order did not identify a relapse, a positive test, or a new safety event. The case turned on a narrower evidentiary question: whether the existing record contained qualified medical opinion evidence expressly connecting the favorable clinical findings to the ultimate standard for unrestricted FAA medical certification.
What happened?
On September 28, 2026, NTSB Administrative Law Judge V. Stuart Couch granted the FAA’s motion for summary judgment in Petition of Maurice MacEwen, NTSB Docket No. SM-31029. The order denied MacEwen’s petition for review, denied his competing cross-motion for summary judgment, and affirmed the FAA’s April 22, 2024 and March 27, 2026 denials of an unrestricted First-Class Airman Medical Certificate.
The decision ended the case at the administrative-law-judge level without the previously contemplated evidentiary hearing.
What the case was actually about
MacEwen holds medical certification through the FAA Special Issuance process. His NTSB petition did not ask the Board to review Special Issuance conditions; NTSB jurisprudence generally treats those discretionary Special Issuance decisions as outside the Board’s jurisdiction.
The case instead challenged the FAA’s separate determination that he did not qualify for an unrestricted First-Class medical certificate.
The governing substance-dependence standard in 14 C.F.R. § 67.107(a)(4) allows an exception 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.
MacEwen did not dispute his historical diagnosis. The dispute concerned whether the post-treatment record established the recovery contemplated by that exception.
The court acknowledged substantial favorable evidence
The ruling is important because it did not characterize the record as devoid of competent evidence supporting recovery.
Judge Couch expressly recognized prolonged abstinence, monitoring compliance, diagnoses of sustained remission, vocational success, favorable psychological testing, continuing recovery activity, favorable collateral observations, and the absence of any identified relapse since treatment began in 2017.
The order also acknowledged that many of the recovery factors disclosed by the FAA during discovery favored MacEwen.
That matters. This was not a case in which the petitioner simply offered a personal assertion of recovery against an unrebutted medical file.
So why did summary judgment still go to the FAA?
The court drew a distinction between favorable clinical facts and the ultimate aeromedical opinion required to overturn the FAA’s denial.
The record included reports from Dr. Stafford Henry, Dr. Lantie Jorandby, and Dr. Daniel DaSilva. Those records contained significant favorable findings. But Drs. Henry and Jorandby also expressed continuing concerns and recommended continued monitoring. Dr. DaSilva addressed psychological and neuropsychological issues but did not offer the ultimate opinion that MacEwen had established recovery sufficient for unrestricted certification.
The FAA, by contrast, designated its Chief Psychiatrist, Dr. Chadwick Burgdorff, as an expert. Dr. Burgdorff concluded that MacEwen had not established recovery satisfactory to the Federal Air Surgeon for unrestricted certification.
MacEwen did not retain a separate litigation expert to provide a competing ultimate opinion. His position was that the existing medical record already contained the clinical evidence necessary to decide the case.
Judge Couch ultimately concluded that a factfinder could not independently take the favorable clinical findings and convert them into the final aeromedical determination required by § 67.107(a)(4) without supporting qualified medical opinion.
Why didn't the FAA's own recovery-factor list decide the issue?
This is one of the most consequential questions raised by the decision.
During supplemental discovery, the FAA identified a non-exhaustive group of factors that the Federal Air Surgeon’s office says it considers in assessing satisfactory recovery. The FAA described the analysis as individualized and holistic, with no single factor controlling.
MacEwen applied the disclosed framework to his record and argued that the great majority of the identified factors favored recovery. Judge Couch agreed that many did: prolonged abstinence, monitoring compliance, sustained-remission diagnoses, vocational success, favorable psychological testing, and no identified relapse.
But the court held that a favorable factor-by-factor record still did not replace the missing ultimate medical opinion. In the judge’s view, the list provided a framework for medical judgment; it did not authorize the court to make that medical judgment itself.
That explains the court’s reasoning. It does not eliminate the larger procedural question.
The harder question: why wasn't the existing record enough to require a hearing?
The strongest unresolved issue is not whether an administrative law judge should independently practice medicine. The more difficult question is whether the combination of qualified clinical findings, the FAA’s own disclosed recovery factors, conflicting interpretations of those findings, and unresolved discovery created a genuine issue that should have been tested at an evidentiary hearing.
At summary judgment, the question is ordinarily whether a genuine dispute of material fact requires trial—not whether the nonmoving party has already proven the entire case.
Here, medical professionals had already documented sustained remission, prolonged abstinence, confirmed sobriety, favorable mental-status findings, and the absence of significant personality dysfunction. The FAA’s later-disclosed recovery framework directly addressed many of the same subjects.
The court nevertheless held that, because no qualified evaluator had expressly connected the totality of those favorable facts to unrestricted certification, the case could be resolved without live testimony.
That produces an important question for airmen navigating the system:
When qualified clinicians supply the clinical building blocks of recovery and the FAA supplies the factors it says govern the determination, must an airman still obtain another physician willing to write the precise ultimate certification conclusion before a factfinder is permitted to hear the case?
The unresolved discovery issue
The decision also denied MacEwen’s request to defer summary judgment while disputes remained over the FAA’s compliance with court-ordered supplemental discovery concerning its recovery criteria and how those criteria were applied.
Judge Couch reasoned that even if MacEwen’s criticisms of the FAA’s supplemental discovery responses were correct, additional information concerning the recovery framework would not cure what the court viewed as the dispositive evidentiary deficiency: the absence of a qualified medical opinion concluding that MacEwen met the recovery standard for unrestricted certification.
That reasoning places the discovery issue and the expert-opinion issue together. The court effectively concluded that learning more about the FAA’s criteria would not matter unless the record also contained qualified medical opinion evidence applying those criteria to the ultimate certification question.
Whether that was the proper point at which to terminate the proceeding—rather than complete discovery and test the competing medical interpretations through live testimony—is a legitimate question raised by the order.
No evidentiary hearing occurred
A multi-day evidentiary hearing had been scheduled. It never occurred.
The physicians were not placed on the witness stand. Their opinions were not tested through live examination and cross-examination. The court did not hear testimony exploring how the FAA’s disclosed recovery factors should be applied to the clinical record.
The court concluded that those steps were unnecessary because the existing written record could not satisfy MacEwen’s burden even when the favorable evidence was accepted for purposes of the motions.
What the ruling does — and does not — establish
The September 28 order is a significant adverse ruling for MacEwen at the ALJ level. The FAA’s denial of unrestricted certification remains affirmed by that order unless altered through a later procedural mechanism.
But the decision should not be overstated. It did not identify a relapse, a failed alcohol or drug test, or a new operational safety event. It did not reject the existence of prolonged abstinence. It did not find that the favorable psychological evidence was invalid. And it expressly recognized that many of the FAA-disclosed recovery factors favored the petitioner.
The dispositive issue was narrower: the court found the record insufficient to carry the petitioner’s burden without qualified medical opinion expressly establishing the ultimate recovery determination necessary for unrestricted certification.
What procedural avenues remain?
The September 28 decision is an order of an NTSB administrative law judge, not necessarily the final procedural level available under the Board’s rules.
The order states that a party may file a notice of appeal to the full NTSB within 10 days after service and must perfect that appeal with a supporting brief within 30 days after service. The Board’s rules also provide mechanisms for reconsideration before the ALJ under specified circumstances. After final Board action, judicial review may be available under applicable federal law.
Separate from the NTSB process, the FAA retains its own aeromedical authority concerning Special Issuance, monitoring, and certification decisions.
P4HR is not announcing in this article which, if any, procedural avenue will be pursued in this individual case.
The larger issue for P4HR
This case illustrates why clear, durable, transparent recovery standards matter.
The FAA disclosed a holistic, non-exhaustive framework. The court recognized that many of the disclosed factors favored the petitioner. Yet the proceeding still ended because no qualified evaluator had written the ultimate conclusion necessary to overcome the FAA’s contrary medical judgment.
That raises a system-level question:
Should an airman’s ability to exit extraordinary medical oversight after years of documented stability turn on whether a physician has articulated the precise ultimate opinion needed to challenge another government physician’s discretionary judgment?
Reasonable professionals may disagree about the medical evidence in an individual case. That is precisely why the standard should be understandable, reviewable, and capable of consistent application.
Pilots, air traffic controllers, treating professionals, HIMS AMEs, FAA physicians, and reviewing tribunals should be able to understand what evidence demonstrates recovery, what evidence weighs against it, and what must occur before extraordinary oversight is no longer medically justified.
The September 28 ruling did not resolve those larger questions.
If anything, it made them harder to ignore.
Source note: Petition of Maurice MacEwen, NTSB Docket No. SM-31029, Order Granting Administrator’s Motion for Summary Judgment (Sept. 28, 2026); 14 C.F.R. § 67.107(a)(4); 49 C.F.R. Part 821.
Disclosure: Maurice MacEwen is a co-founder of Pilots for HIMS Reform and the petitioner in the proceeding discussed above. P4HR is an independent advocacy organization and is not affiliated with the FAA or the official HIMS Program.