A recent NTSB opinion hints at, but does not expressly state, how the Board would view an airman’s failure to disclose an expunged criminal conviction on an application for medical certificate. In Administrator v. Spyke, the FAA issued an emergency order revoking all of the airman’s certificates based upon his alleged failure to disclose a criminal conviction on his application for medical certificate. At the hearing, the airman argued that he did not disclose the conviction because he believed that his criminal attorney had obtained an expungement of the conviction. However, the administrative law judge (“ALJ”) found that the airman’s conviction had not been expunged and the airman’s claim that he reasonably believed otherwise was not credible. The ALJ affirmed the FAA’s order of revocation and the airman appealed the decision to the full Board.
On appeal, the Board initially observed that it will not disturb the ALJ’s credibility determinations “absent a showing that they are clearly not supported by the record evidence.” It then found that the airman’s claims that he did not attempt to ensure his conviction was expunged prior to completing his application for medical certificate and that he believed his conviction was expunged when he submitted his application were “inherently incredible.” With respect to the issue of whether an airman’s failure to disclose a conviction would be justified by an expungment of the conviction, the Board refused to decide the issue because the airman’s conviction had not, in fact, been expunged. However, the Board did give some indication of how it might decide the issue in a situation where such a decision was required.
The Board initially stated that “we are skeptical whether an expunged felony conviction should justify answering “no” to question 18w notwithstanding an applicant’s knowledge of the underlying conviction giving rise to any expungement.” However, it went on to note that if an “expungement could in some limited circumstances (depending on the terms and scope of the expungement or other deferred adjudication) exonerate an applicant on a charge of intentional falsification for answering “no” to question 18w, we think this would be in the nature of an affirmative defense that a respondent would have to prove. In other words, the exculpatory effect, if any, of an expungement would be through legal operation of the applicable terms of the expungement agreement to nullify culpability for an answer that would otherwise be factually, but not legally, incorrect.”
What does this mean to airmen? First, since it did not actually decide the issue, the Board’s comments are not precedent and do not guarantee how it would rule on the issue. In fact, based upon the Board’s language, the Board may not even consider an expungement as a defense at all. Second, it appears that any decision relying based upon an expungement argument will be very fact-dependent and will rely heavily upon the exact terms and conditions of the expungement. Although this opinion does not give us a definitive answer on the issue, it does provide some indication of how the Board might view the issue. An airman may then be able to tailor his or her arguments accordingly. At least its something, I guess.