The NTSB recently affirmed an Administrative Law Judge’s (“ALJ”) grant of summary judgment to the FAA in an intentional falsification case despite the airman’s argument that questions of fact existed regarding the issue of his “intent” to falsify. In Administrator v. Singleton, the FAA issued an emergency revocation order revoking the airman’s certificates based upon the airman’s alleged false answer to Question 18v on his application for medical certificate (no history of alcohol/drug convictions or drivers license suspensions/revocations) 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’s driver’s license had been suspended in connection with an arrest for driving under the influence (“DUI”).
The airman appealed the emergency 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 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 Board.
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 must prove that a pilot (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. It also 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.”
This case in an unfortunate reminder of the hard-line, unforgiving position the FAA takes with respect to intentional falsification cases and of the NTSB’s deference to, and support of, that position. It should also put airman on notice that if you have any question regarding how you need to respond to questions on the medical application, you should seek clarification and advice from an aviation attorney in advance to make sure your answers are truthful. You will not be able to fix it after the fact.
