In a recent case, Administrator v. McGonegal, the NTSB reversed Judge Fowler’s dismissal of an emergency revocation of the airman’s airline transport and medical certificates. The FAA alleged that the airman had falsified 14 applications for medical certificate in violation of FAR 67.403(a)(1) by failing to disclose required information regarding the airman’s conviction for “Refusal to Take Chemical Test” following a traffic stop; his hospitalization and associated follow-up medical care for injuries sustained in connection with a car accident; and a knee injury resulting in treatment by an orthopedic surgeon. At the hearing, Judge Fowler concluded that, although respondent’s answers to questions 18v and 19 on the medical applications may have been “wrong”, the evidence was insufficient to show that the airman had any “false or fraudulent intent” or any “intent to deceive or to falsify” or that the airman the statements were false.
On appeal, the FAA argued that the airman’s statements were indisputably false and that his own testimony showed that he made a conscious decision not to disclose the requested information. The FAA further contended that “it is not up to [r]espondent to decide which medical information that is required to be disclosed on [the medical application] is significant and which is not,” that the airman was, “substituting his judgment for those charged with the responsibility to perform those functions,” and that in, “failing to report requested information to the FAA, [r]espondent effectively denied the FAA the opportunity to assess his qualifications to hold the medical certificate that was issued to him.” The NTSB agreed.
The Board first cited the elements of an intentionally false statement: (1) a false representation; (2) in reference to a material fact; (3) made with knowledge of its falsity; and the additional elements that must be proven to establish a fraudulent statement: the representation be made (4) with the intent to deceive; and (5) with action taken in reliance on the representation. The Board observed that “[a]lthough the complaint alleges that respondent’s answers were ‘fraudulent or intentionally false,’ it does not appear from the record that the Administrator was attempting to establish a case of fraud.” Since intentional falsification alone is sufficient to justify revocation, the Board noted that the FAA was only required to show that respondent’s incorrect answers on the application were made with knowledge of their falsity. It then stated that “[t]he law judge appears to have applied the wrong standard for an intentional falsification case.”
The Board then concluded that, applying the proper standard, “it is abundantly clear from the record that, notwithstanding the law judge’s contrary view, this standard was met.” It found that Judge Fowler’s findings of fact were inconsistent with the overwhelming weight of the evidence in light of the airman’s admission that he knew the answers to those questions were false and his attempt to justify those false answers by arguing that the undisclosed information was not significant or material. Unfortunately for the airman, Board precedent is clear that an applicant’s answers to all questions on a medical application are material.
Although the Board’s decision is not surprising, what is surprising is that Judge Fowler would dismiss the emergency revocation based upon the facts cited in the Board’s opinion. Not something I would expect from Judge Fowler.
