What happens when the FAA attorney forgets to introduce into evidence the very document the FAA claims an airman falsified? The FAA loses! That was the situation in a recent case in which the NTSB reversed an administrative law judge’s (“ALJ”) finding that an airman had falsified his application for medical certificate. In Administrator v. Mashadov, the airman was convicted of driving while intoxicated (“DWI”) and failed to report the conviction to either the FAA Civil Aviation Security Division or on his application for medical certificate. As a result, the FAA issued an emergency order revoking all of the airman’s certificates based upon the airman’s alleged violations of FARs 61.15(e) (failure to report a DWI conviction) and 67.403(a)(1) (intentional falsification of a medical application).
At the hearing before the ALJ, the airman admitted that he had not reported the conviction as required under FAR 61.15(e). With respect to the medical application, the airman testified that he simply responded “no” to all of the questions, included Question 18v which specifically asks about drug or alcohol related arrests or convictions. At the end of the hearing, the ALJ determined the FAA had proven that the airman falsified his medical application in violation of FAR 67.403(a)(1) and failed to report the DWI conviction as required by FAR 61.15(e). As a result, he affirmed the FAA’s order of revocation.
On appeal to the full Board, the airman argued, among other things, that the FAA failed present a prima facie case because it failed to seek admission of his medical file, which included the allegedly falsified application. The Board agreed stating “[s]ince the record before us fails to contain the very document the Administrator alleges respondent falsified, we will not affirm the Administrator’s order.”
The Board next expressed its displeasure with the FAA by commenting that “the fact that the Administrator would bring an intentional falsification case attempting to revoke all of respondent’s certificates, yet not move to admit the very document the Administrator accuses respondent of falsifying, strains credulity.” The Board concluded by warning “[w]hen the case turns on an alleged falsified document, it is imperative the Administrator produce that document to meet his burden of proof or provide good cause for why the Administrator could not produce the document.”
This case certainly helps restore some of my faith in the Board. I’m not sure how or why the FAA attorney failed to offer the allegedly falsified medical application into evidence at the hearing. However, from my perspective, and, thankfully, from the Board’s perspective, that should be a necessary piece of evidence in a falsification case. In this case, the airman got lucky. In the absence of the FAA attorney’s error, I am pretty sure the outcome would not have been favorable for the airman.
