Defending Against An Intentional Falsification Charge: A Question Of Intent
By Gregory J. Reigel
© January, 2010 All rights reserved.
The District of Columbia Circuit of the United States Court of Appeals
recently issued two opinions addressing two airmen’s attempts to defend themselves against FAA claims that they intentionally falsified their medical certificate applications. In both cases, the Court reversed the National Transportation Safety Board’s
("NTSB") approval of the FAA’s revocation order, although for slightly different reasons.
The Court admonished the NTSB’s seemingly biased attempts to rubber-stamp the FAA’s revocation orders. Additionally, the decisions both highlight a defense airmen may assert when appealing an intentional falsification claim.
Singleton v. FAA.
In Singleton v. FAA
, the FAA issued an emergency revocation order revoking the airman's certificates based upon the airman's alleged false answer to Question 18v (asking the airman to disclose any history of alcohol/drug convictions or drivers license suspensions/revocations)on his application for medical certificate in violation of FAR § 67.403(a)(1)
(Prohibiting a person from making fraudulent or intentionally false statements on an application for a medical certificate). At the time the airman completed his medical application, the airman's driver's license had been suspended in connection with an arrest for driving under the influence ("DUI"). However, the airman answered Question 18v "no".
The airman appealed the revocation order and the FAA subsequently moved for summary judgment. The FAA argued that the airman's medical application along with the court documents the airman previously provided to the FAA regarding the DUI arrest and license suspension demonstrated all elements of an intentional falsification claim. In response, the airman argued that "whether or not he had actual knowledge of falsity or intentionally made false statements presents a material issue of fact to be resolved after a hearing on the merits." The Administrative Law Judge (“ALJ”) concluded that no material issues of fact existed and the undisputed evidence proved the FAA's claim. He granted the FAA's motion and the airman then appealed to the full NTSB.
On appeal, the airman reiterated his argument that a genuine issue of material fact existed that could not be decided without a hearing to examine the "intentionality" of the airman's answer on the application. The Board began its analysis by observing that the FAA was required to prove that the airman (1) made a false representation, (2) in reference to a material fact, (3) with knowledge of the falsity of the fact in order to prevail on an intentional falsification claim.
In response to the airman's argument, the Board initially noted that an airman's failure to consider a question on a medical application carefully before providing an answer does not establish a lack of intent to provide false information. Further, it reiterated that the two questions on the medical application about traffic and other convictions are not confusing to a person of ordinary intelligence. The Board then observed that the term "administrative action" has a plain meaning and is not confusing.
The Board held that the question was not confusing and "where the DUI infraction at issue clearly begs candidness with the Administrator," the airman is precluded from claiming he did not knowingly provide a false response. The Board went further and indicated that the airman’s understanding of Question 18v was not even relevant to whether he had the knowledge required to make an intentionally false
The Board concluded that the airman "was aware of the statement’s falsity, in that he knew that his driving privileges had been revoked, and he knew that the reason for that revocation was because of an alcohol-related incident." As a result, the NTSB affirmed the ALJ’s grant of summary judgment to the FAA despite the airman's argument that questions of fact existed regarding the issue of his "intent" to falsify.
However, the Court of Appeals disagreed. The Court held that the airman’s understanding
of the form was relevant to the offense of intentional falsification because § 67.403(a)(1)
requires proof that the "airman subjectively understood what the question meant." Thus, the FAA must prove, and the NTSB must find, that the airman understood the question to which he or she provided an allegedly false answer.
As a result, the Court concluded that the grant of summary judgment to the FAA without giving the airman a chance to present evidence bearing on his understanding of the question was improper.
Dillmon v. NTSB
. In Dillmon v. NTSB
, the FAA issued an emergency revocation order revoking the airman's certificates based upon the airman's alleged false answer to Question 18w (asking the airman to disclose any history of non-traffic misdemeanor or felony convictions) on his application for medical certificate in violation of FAR § 67.403(a)(1)
(Prohibiting a person from making fraudulent or intentionally false statements on an application for a medical certificate). At the time the airman completed his medical application, the airman's driver's license had been convicted of felony bribery. However, the airman answered Question 18w "no".
The airman appealed the FAA's revocation order to the NTSB and a hearing was held before an ALJ. At the conclusion of the hearing, the ALJ determined that the airman was a credible witness and did not intentionally falsify the medical application because he believed Question 18w was only concerned with alcohol and drug convictions, and did not include his bribery conviction. The ALJ then reversed the FAA’s emergency revocation order. The FAA appealed the ALJ's decision to the full Board.
On appeal, the Board rejected the ALJ's finding that the airman did not make an intentionally false statement. The Board also determined that the ALJ improperly required the FAA to prove that the airman had the specific intent to deceive the FAA, rather than the lesser burden of proving intent to falsify. As a result, the Board reversed the ALJ and affirmed the FAA’s emergency revocation order. The airman then appealed.
The Court of Appeals found that the Board's reversal of the ALJ was improper in two respects. First, the Court observed that the Board's reversal completely ignored the ALJ's credibility finding in the airman's favor. Without even acknowledging that the ALJ had made a credibility finding, the Court held the Board's decision inconsistent with Board precedent requiring deference to an ALJ's credibility determinations.
Next, the Court determined that the Board's conclusion that the airman knew he had been convicted of a non-traffic offense ignored whether the airman knew his answer to Question 18w was false. Since Board precedent holds that an airman’s subjective understanding of the questions in the medical application is relevant, the Court concluded that the Board's failure to follow its own precedent, without explanation, was reversible error.
What does this mean for airmen? Well, neither of these cases precludes an ALJ or the NTSB from finding that an airman did, in fact, understand that a question required a "yes" answer when the airman actually answered "no". Further, if an airman is successful in convincing an ALJ that he or she lacked intent, the Board may still reverse the ALJ's credibility determination, provided that it uses the appropriate standard, or the Board may make factual determinations contrary to those of the ALJ is they are supported by substantial evidence.
However, this may not be the case for long. In the Dillmon
Court's concluding remarks it stated that "the FAA may revisit its interpretation of the intent element of FAR § 67.403(a)(1)
and decide it rejects the airman’s subjective interpretation of the questions in the medical application." I wouldn't be surprised if the FAA takes this very action and eliminates an airman's ability to raise this defense. And, unfortunately, if it does the Board will be required to defer to that decision.
At least for now, these cases mean that an airman can defend against an intentional falsification claim by arguing that he or she did not know that an answer was false. The airman should be given the opportunity to argue this defense to an ALJ. However, absent unusual circumstances, in most situations it will still be difficult to convince an ALJ and/or the Board that the airman did not know his or her answer was false at the time the airman completed the medical application.
For more information regarding aviation law, safety and security, e-mail Greg at firstname.lastname@example.org or visit his website at www.aerolegalservices.com