 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 23, 2016         Decided November 15, 2016

                       No. 16-1007

                      ERIC FRIEDMAN,
                        PETITIONER

                             v.

           FEDERAL AVIATION ADMINISTRATION,
                     RESPONDENT


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


   Z.W. Julius Chen argued the cause for Petitioner. With
him on the briefs were Gregory S. Walden and William
Mongan. Pratik A. Shah entered an appearance.

     Amanda Kate Bruchs, Attorney, Federal Aviation
Administration, argued the cause and filed the brief for
Respondent. Michael S. Raab and Abby C. Wright, Attorneys,
U.S. Department of Justice, entered appearances.

     Neal Kumar Katyal and Jaclyn L. DiLauro were on the
brief for amicus curiae The American Diabetes Association in
support of Petitioner.

    Before: ROGERS, BROWN and PILLARD, Circuit Judges.
                                2
    Opinion for the Court filed by BROWN, Circuit Judge.

BROWN, Circuit Judge:

“I’ve never known an industry that can get into people’s
blood the way aviation does.”
                 - Robert Six, founder of Continental Airlines

     Petitioner Eric Friedman (“Friedman”), a commercial
airline pilot, claims Respondent Federal Aviation
Administration (“the FAA” or “the Agency”) has behaved in
an arbitrary and capricious manner in assessing his request for
a commercial airline pilot’s license. Friedman has been
diagnosed with Insulin Treated Diabetes Mellitus (“ITDM”),
and although he holds a third class medical certificate
authorizing him to pilot non-commercial flights in the United
States, he seeks the first class certificate necessary to serve as
a commercial airline pilot.          He argues the FAA has
impermissibly conditioned issuance of a first class license on
ninety days of continuous blood glucose monitoring, a costly
and invasive procedure not medically necessary for his care.
Since we believe the Agency’s unwavering position
constitutes final action, we remand to the FAA to provide
reasons for its denial.

                                I.

     Congress has granted the FAA broad authority to regulate
those “practices, methods, and procedure[s] the Administrator
finds necessary for safety in air commerce and national
security.” 49 U.S.C. § 44701(a)(5). Accordingly, the FAA
issues airman certificates to pilots who are “qualified for, and
physically able to perform the duties related to, the position.”
Id. § 44703(a). The Agency has also established rules
requiring pilots to hold both a medical certificate and a pilot
                               3
certificate. See, e.g., 14 C.F.R. § 61.3(a) & (c). The FAA
lists a number of conditions generally disqualifying for any
class of medical certification, among them a “medical history
or clinical diagnosis of diabetes mellitus that requires insulin
or any other hypoglycemic drug for control,” otherwise
known as ITDM. 14 C.F.R. §§ 67.113(a), 67.213(a),
67.313(a). While a diagnosis of ITDM generally excludes a
pilot from any medical certificate issued by the FAA pursuant
to 49 U.S.C. § 44703(a), the FAA has the discretionary
authority to grant exceptions to the medical regulations
contained in 14 C.F.R. § 67. See 49 U.S.C. § 44701(f). An
Authorization for Special Issuance of a Medical Certificate
may be provided to an applicant with a disqualifying
condition “if the person shows to the satisfaction of the
Federal Air Surgeon that the duties authorized by the class of
medical certificate applied for can be performed without
endangering public safety during the period in which the
Authorization would be in force.” 14 C.F.R. § 67.401(a).

     Regulations require the Federal Air Surgeon (“FAS”) to
make his determination using standards published for each
condition as set forth in the FAA’s Guide to Aviation Medical
Examiners (“AME Guide”). See id. § 67.407(a). The process
includes a medical examination performed by a member of
the community of Aviation Medical Examiners (“AME”s),
see id. § 67.401(a), and it may require pilots to provide
additional medical information to the FAA where necessary,
see id. § 67.413(a). Specifically, the FAS must “consider[]
the need to protect the safety of persons and property in other
aircraft and on the ground.” Id. § 67.401(e).

    For much of its history the FAA enforced a blanket ban
on the issuance of medical certificates to individuals with
ITDM, but in 1996 it reversed course and established criteria
for pilots with ITDM to receive a third class medical
                               4
certificate (but not a first class certificate). Since the policy
change was adopted, there has been no medically related
accident, incident, or inflight incapacitation, from any cause,
of any such insulin treated special issuance pilot. In light of
the strong record of third class pilots with ITDM, and in
reliance on the expert analysis provided by an Expert Panel on
Pilots with Insulin Treated Diabetes (“Expert Panel”)—
convened by the American Diabetes Association (“ADA”) at
the FAA’s request—the FAA amended its AME Guide to
broaden the third class ITDM protocol to all classes of
medical certificates on April 21, 2015.

     On April 27, 2015, Friedman submitted a completed
application for a first class license to the FAA. A few days
later, on April 30, 2015, the FAA requested supplemental
information, including “any and all information that you may
have that is relevant to your condition, which may include . . .
(if applicable) continuous glucose monitor readings.” JA 73.
The next month, Friedman inquired as to the FAA’s method
for evaluating glucose testing results and stated “I do not use
a continuous glucose monitor.” JA 31–32. Continuous
Glucose Monitoring (“CGM”), according to the ADA, is an
invasive procedure that “uses a sensor inserted under the skin
to check glucose levels in tissue fluid. A transmitter sends
information about glucose levels via radio waves from the
sensor to a wireless monitor.” ADA Amicus Br. 14. This
technique provides a “historical record of glucose levels over
time” and can “provid[e] helpful information about historic
trends in one’s blood sugar levels and how those levels have
been affected by diet and exercise.” Id. However, CGM data
is not as accurate as other blood glucose measures like
fingersticks. Id. 15–16. Moreover, CGM is costly and is not
covered by insurance unless medically necessary.
                               5
     On June 17, 2015, just two days after Friedman wrote to
the FAA to note the Agency had requested information
beyond its own published evaluation protocol, the FAA
revised its AME Guide. The newly-minted version provided
“[f]irst and second class applicants will be evaluated on a
case-by-case basis by the Federal Air Surgeon’s Office” and
omitted any protocol for evaluation. JA 469. Later, on
October 6, 2015, the FAA again requested Friedman provide
“any and all information that you may have that is relevant to
your condition, which may include . . . [a] report for
continuous glucose monitoring (CGM) conducted for a
minimum of 90 days.” JA 71. The letter informed Friedman
his application would be denied if he did not indicate he
planned to comply with the request within sixty days. JA 72.
In response, Friedman again advised the FAA he did not
possess any CGM data. This time, however, Friedman also
presented letters from his physicians explaining CGM was not
medically necessary in his case. The Expert Panel even
submitted a letter in support of Friedman’s application to
explain, “CGM systems have value, [but] they are neither
necessary nor appropriate for making decisions on medical
certification of pilots with diabetes” and are less accurate than
the blood glucose data Friedman had already submitted. JA
65–66. On November 13, 2015, the FAA wrote to Friedman
yet again to request CGM data and again cautioned that
failure to respond within thirty days with an agreement to
supply CGM data would result in denial of his application.

     Thereafter, on December 1, 2015, the FAA wrote
Friedman to explain it was “unable to proceed with further
determination of [his] potential eligibility for special issuance
of a first-class airman medical certificate until [the Agency]
receive[d] the [CGM] information previously requested . . . .”
JA 53. On December 18, 2015, the FAS sent an additional
letter informing Friedman his request for a first class
                                6
certification “remains under consideration” and granting him
a third class certificate—the certificate level he already held.
JA 47–48. 1 Specifically, the letter noted the FAS had
reviewed the information submitted in Friedman’s April 27,
2015 application and granted the third class license in
response. Ibid. It further advised Friedman “should not
undergo a new FAA medical examination until advised to do
so by the Aerospace Medicine Certification Division
(AMCD).” JA 48.

                               II.

     The threshold question in this case is whether the FAA
has, either actually or impliedly, issued a final order eligible
for judicial review. The Administrative Procedure Act
(“APA”) authorizes judicial review of “final agency action for
which there is no other adequate remedy in a court,” and
“[a]gency action made reviewable by statute.” 5 U.S.C.
§ 704. And, while Section 46110 of the Federal Aviation Act
authorizes judicial review of an “order” and omits any explicit
finality requirement, this Circuit has “incorporated generally
applicable finality principles into the analysis of what counts
as an ‘order’ under section 46110.” Flytenow, Inc. v. FAA,
808 F.3d 882, 888–89 (D.C. Cir. 2015).

    Here, the FAA contends it did not issue a final order
regarding Friedman’s first class medical certificate

1
  On November 12, 2015, Friedman had applied to the FAA for a
renewal of his third class medical certificate due to expire on
December 31, 2015. While Friedman alleges the FAA altered his
first class application in granting his request for a third class
certificate, he has presented no evidence suggesting this was done
in bad faith. Without evidence to the contrary, “[w]e must presume
an agency acts in good faith.” Comcast Corp. v. FCC, 526 F.3d
763, 769 n.2 (D.C. Cir. 2008).
                               7
application; it purportedly ruled solely on his independent
request for a third class medical certificate and specifically
indicated the first class certificate remained under review.
See JA 47–48, 53. Accordingly, the Court initially considers
whether the Agency’s admitted actions nonetheless meet the
two-part test of finality:

    First, the action must mark the consummation of the
    agency’s decisionmaking process—it must not be of
    a merely tentative or interlocutory nature. And
    second, the action must be one by which rights or
    obligations have been determined, or from which
    legal consequences will flow.

Bennett v. Spear, 520 U.S. 154, 177–78 (1997). Case law
interpreting this standard is “hardly crisp,” and it “lacks many
self-implementing, bright-line rules, given the pragmatic and
flexible nature of the inquiry as a whole.” Rhea Lana, Inc. v.
Dep’t of Labor, 824 F.3d 1023, 1027 (D.C. Cir. 2016). As a
general principle, therefore, “the term ‘order’ in [Section
46110] should be read expansively.” City of Dania Beach v.
FAA, 485 F.3d 1181, 1187 (D.C. Cir. 2007).

    The specific facts presented here establish a constructive
denial of Friedman’s application for a first class certificate.

     In its October 6, 2015 letter, the FAA first expressly
required CGM data from Friedman: the Agency warned it
would “deny [his] request for upgrade” to a first class
certificate if he did not “reply within 60 days . . . [to] advise
[the FAA] of [his] plans” to provide the requested data. JA
72; see 14 C.F.R. § 67.413(a) & (b) (noting an applicant
“must” provide requested supplemental information and
authorizing the FAA to “deny the application for a medical
certificate” for those who fail to comply). Friedman refused.
Thereafter, on November 13, 2015—about one month after
                                8
the FAA’s countdown clock started—the FAA repeated its
demand, and it requested a “reply within 30 days.” JA 55.
The Agency was clearly counting down towards a denial on
December 13, 2015, and yet Friedman continued to explain
that he did not possess or intend to procure the requested
CGM data.          Then, in its December 1, 2015 letter
acknowledging communication from Friedman’s attorney, the
FAA ignored the ticking clock. Instead, it merely noted, “We
are unable to proceed with further determination of your
potential eligibility for special issuance of a first-class airman
medical certificate until we receive the information previously
requested in our letter of November 13, 2015. We look
forward to reviewing that information when you are able to
provide it.” JA 53. Thereafter, in its only communication
authored after the thirty-day deadline had passed, the FAA
acknowledged Friedman’s “request for upgrade[d] first-class
special issuance medical certification remains under
consideration,” but it failed to offer an extension of the
previously-set deadline or otherwise establish any timetable
for denial of Friedman’s application for failure to comply. JA
47 (December 18, 2015 letter).

     Here, the FAA has issued no formal decision on
Friedman’s application for a first class certificate. Despite his
consistent refusal to provide the requested CGM data, the
Agency has placed Friedman in a holding pattern—preventing
him from obtaining any explicitly final determination on his
application and thwarting the Court’s interest in reviewing
those agency actions that, in practical effect if not formal
acknowledgement, constitute “the consummation of the
agency’s decisionmaking process” and determine “rights or
obligations.” Bennett, 520 U.S. at 177–78; see also 5 U.S.C.
§ 551(13) (defining agency “action” to include a “failure to
act”). Indeed, this Court has repeatedly noted the applicable
test is not whether there are further administrative
                               9
proceedings available, but rather “whether the impact of the
order is sufficiently ‘final’ to warrant review in the context of
the particular case.” Envtl. Def. Fund, Inc. v. Ruckelshaus,
439 F.2d 584, 591 (D.C. Cir. 1971) (assessing the Federal
Insecticide, Fungicide, and Rodenticide Act’s provision for
judicial review “[i]n a case of actual controversy as to the
validity of any order” of the Secretary of Agriculture as
articulated in 7 U.S.C. § 135b(d) (1970)); Ciba-Geigy Corp.
v. EPA, 801 F.2d 430, 435–37 (D.C. Cir. 1986) (finding final
agency action where a letter from the Environmental
Protection Agency confirmed its policy with respect to new
labeling changes and noting “[o]nce the agency publicly
articulates an unequivocal position . . . and expects regulated
entities to alter their primary conduct to conform to that
position, the agency has voluntarily relinquished the benefit
of postponed judicial review”); Envtl. Def. Fund, Inc. v.
Hardin, 428 F.2d 1093, 1098–99 (D.C. Cir. 1970).

     Where an agency has clearly communicated it will not
reach a determination on a petitioner’s submission due to
petitioner’s recalcitrance but simultaneously refuses to deny
the petitioner’s submission on those grounds, it has engaged
in final agency action subject to this Court’s review. In
Securitypoint Holdings, Inc. v. Transportation Security
Administration, 769 F.3d 1184 (D.C. Cir. 2014), for example,
we reviewed as final agency action a letter from the
Transportation Security Agency (“TSA”) Chief Counsel
refusing to lift a contracting requirement newly imposed on
TSA airport security checkpoint contractors. SecurityPoint
sought to obtain the government contract, but it objected to
and refused to sign TSA’s new Memorandum of
Understanding (“MOU”) promising to indemnify TSA for
intellectual property claims. Id. at 1186. The company wrote
to the TSA’s Chief Counsel to urge the agency to abandon the
MOU, and TSA denied the request by letter. The Court later
                              10
held that letter represented the consummation of the agency’s
“decisionmaking process regarding SecurityPoint’s contention
that it should abandon the challenged alterations of the MOU
language.” Id. at 1187. Here, Friedman refuses to comply
with the agency requirement he seeks to challenge, and the
Agency has made clear it will not act on his application until
he submits. Friedman, for his part, repeatedly asserts that he
provided all that is required under the April 2015 AME
Guide, and no FAA “regulation or policy require[s] the use of
[CGM] for either initial certification or inflight monitoring.”
JA 41–43. Accordingly, as with the TSA Chief Counsel’s
letter in SecurityPoint, the FAA’s communications here
represent the agency’s rejection of Friedman’s argument, its
final decision to require CGM data, and its confirmation that
it is not now opening the third-class applicants’ case-by-case
exemption process to first-class applicants.

     The government, apparently ignoring the power of the
Court to ensure justice in an area of law governed by a
“pragmatic and flexible” approach, Rhea Lana, 824 F.3d at
1027, is content to distinguish the cases cited by Friedman on
their specific facts. Air One Helicopters, Inc. v. FAA, 86 F.3d
880 (9th Cir. 1996), the Agency contends, applies only to a
scenario where an agency and a private party find themselves
at an impasse that neither is empowered to clear. Similarly,
the FAA reads Air Line Pilots Ass’n International v. Civil
Aeronautics Board, 750 F.2d 81 (D.C. Cir. 1984), to apply
only to situations where the private party has done everything
in his power to comply with an agency’s request but the
agency, nonetheless, excessively delays determination of his
claims.      Finally, the FAA asserts the doctrine of
Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093,
1099 (D.C. Cir. 1970), reviewing “administrative inaction
[that] has precisely the same impact on the rights of the
parties as denial of relief,” does not apply since Friedman is
                              11
free to trigger a new six-month license validity period at his
option. The Agency has missed the forest for the trees.
Nothing in our case law suggests the law of final agency
action is confined to the specific facts of prior circuit cases.

     To the contrary, the doctrine asks whether a particular
agency action represents the “consummation of [its]
decisionmaking process” and determines “rights or
obligations.” Bennett, 520 U.S. at 177–78. The standard is
met here. As described above, the FAA has set deadlines,
counted down towards them, and then allowed them to pass
without discussion; its actions suggest the FAA has made up
its mind, yet it seeks to avoid judicial review by holding out a
vague prospect of reconsideration. And, as a result of the
FAA’s conduct, Friedman has been unable to resume his job
as a commercial airline pilot at American Airlines, a job that
requires a first class medical certificate. See Safe Extensions,
Inc. v. FAA, 509 F.3d 593, 598 (D.C. Cir. 2007) (finding
adequate legal consequences where an agency’s new test for
runway lighting “effectively prohibits airports from buying
light bases that fail the new . . . test, and . . . bars
manufacturers like Safe Extensions from selling their
products to airports”).

                              III.

     Since we hold Friedman’s case is subject to judicial
review, we now proceed to the merits.

     The FAA argues Friedman’s claims are insulated from
judicial scrutiny as “there is no law to apply” to the FAA’s
determination. Drake v. FAA, 291 F.3d 59, 70 (D.C. Cir.
2002); see also Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 410 (1971). But the jurisprudence of
unfettered discretion is inapplicable here. Several regulations
provide the criteria upon which the FAS relies to determine
                              12
whether Friedman may be granted a first-class certificate.
Specifically, under 14 C.F.R. § 67.401(a), a special issuance
may be granted “if the person shows to the satisfaction of the
Federal Air Surgeon that the duties authorized by the class of
medical certificate applied for can be performed without
endangering public safety during the period in which the
Authorization would be in force.” Later in that same section,
the regulation charges the FAS with a duty to “consider[] the
need to protect the safety of persons and property in other
aircraft and on the ground.” Id. § 67.401(e). While these
directives are clearly open to interpretation, they nonetheless
provide a judicially manageable standard. See, e.g., Safe
Extensions, 509 F.3d at 601 (finding a judicially manageable
standard in the phrase “necessary for safety” under 49 U.S.C.
§ 44701); Union of Concerned Scientists v. U.S. Nuclear
Regulatory Comm’n, 824 F.2d 108, 109, 113 (D.C. Cir. 1987)
(reviewing whether regulations “provide[d] adequate
protection to the health and safety of the public” under 42
U.S.C. § 2232(a)).

     Arguing in the alternative, the FAA maintains
Friedman’s license application was denied for refusal to
comply with the Agency’s request for CGM data. To justify
this decision, the FAA points to the Expert Panel’s letter in
support of Friedman’s application, which acknowledged
“CGM systems have value” and are “most useful in
identifying trends and the direction and speed at which a
person’s blood sugar may be changing.” JA 65–66. While
the Expert Panel concluded treatment decisions for
individuals with ITDM should not be based on CGM data
alone—as the devices may be inaccurate and are, in any
event, less accurate than fingerstick blood test results—it also
noted CGM provides constant glucose monitoring results
capable of detecting spikes and dips in interstitial glucose
(indicative of actual blood glucose) that might have gone
                              13
undetected via intermittent fingerstick measurements. Ibid;
see also ADA Amicus Br. 13–14. Nonetheless, the FAA
overstates the usefulness of this concession, as the Expert
Panel does not ultimately recommend employing CGM data
“for making decisions on medical certification of pilots with
diabetes.” JA 66. It is not for us to say in the first instance
whether or how CGM data might be of future use to the FAA
in evaluating license applications. But it is clear the FAA has
not borne its burden of justification. The FAA’s letters
communicating its demand for CGM data to Friedman,
despite his many requests for clarification, fail to articulate
any rationale for consideration of the additional information.
See Safe Extensions, 509 F.3d at 606 (finding no “substantial
evidence” to support the FAA’s rationale where it offered “no
evidence whatsoever” on the relevant issue).

     Notably, the Agency does not identify any FAA
statements that could be construed as explaining its denial of
Friedman’s application, the determination Friedman calls
upon this Court to review. Of course, there is a certain irony
inherent in requiring an agency to identify reasons for a denial
it never thought it issued. But “recent [D.C. Circuit] cases
regarding whether agency actions qualify as orders never
consider the adequacy of the record, instead asking only
whether the action was final.” Id. at 599 (citing Dania Beach,
485 F.3d at 1187; Vill. of Bensenville v. FAA, 457 F.3d 52, 68
(D.C. Cir. 2006)). As the Supreme Court explained,

       The focal point for judicial review should be
       the administrative record already in existence,
       not some new record made initially in the
       reviewing court. The task of the reviewing
       court is to apply the appropriate APA standard
       of review to the agency decision based on the
       record the agency presents to the reviewing
                              14
       court. If the record before the agency does not
       support the agency action, if the agency has
       not considered all relevant factors, or if the
       reviewing court simply cannot evaluate the
       challenged agency action on the basis of the
       record before it, the proper course, except in
       rare circumstances, is to remand to the agency
       for additional investigation or explanation.

Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743–44
(1985). Specifically, “the court can undertake review as
though the agency had denied the requested relief and can
order an agency to either act or provide a reasoned
explanation for its failure to act.” Sierra Club v. Thomas, 828
F.2d 783, 793 (D.C. Cir. 1987).

    In light of the complete absence of a relevant
administrative record to review—and the inherent inequity in
passing judgment on this matter without offering the Agency
a chance to explain its reasoning—any analysis of the FAA’s
denial would be imprudent. Accordingly, we remand this
matter to the FAA to offer reasons for its denial of Friedman’s
application for a first class medical certificate. Friedman’s
additional allegations must await proceedings on remand.
                              15
                              ***

     The FAA has placed Friedman in administrative limbo—
he has neither a first class medical certificate nor an official
order denying him the certificate—and the only way out
requires capitulation to the very requirement he seeks to
challenge. The Agency cannot manipulate its own processes,
threatening denial but then refusing to deny or otherwise take
definitive action on Friedman’s application, in an effort to
thwart judicial review.

                                                    So ordered.
