In a recent decision, Administrator v. Finazzo the NTSB affirmed an administrative law judge’s (“ALJ”) decision after the Ninth Circuit Court of Appeals reversed the Board’s earlier substitution of its credibility determination for the determination made by the ALJ at the hearing. The case involved the FAA’s claim that the airman had intentionally falsified nine medical applications by failing to disclose several physician visits, prescription medications she was taking, and certain diagnoses. After a hearing, the ALJ found the airman’s testimony that she was unaware of certain diagnoses was credible and that the undisclosed physician visits were not in reference to a material fact. The ALJ also determined that the FAA had failed to prove that the airman was “currently” taking the prescribed medications. As a result, the ALJ held that the FAA had not met its burden of proving the airman intentionally falsified her medical applications.
The FAA appealed the ALJ’s decision to the full Board which reversed the ALJ’s decision. The Board “concluded the weight of the evidence was directly contrary to the law judge’s assessment that [airman’s] testimony was credible.” It reversed the ALJ’s decision and found that the FAA had proven the allegations of intentional falsification.
However, in granting the airman’s appeal of the Board’s decision, the Ninth Circuit subsequently ruled that the Board did not rely upon sufficient evidence in rejecting the ALJ’s credibility assessment. The Court also indicated the Board should not have considered certain evidence as persuasive in light of other more favorable testimony concerning the airman’s truthfulness.
On remand, the Board initially reiterated its standard that “resolution of a credibility determination, unless made in an arbitrary or capricious manner or unless clearly erroneous, is within the exclusive province of the law judge.” Unless the testimony is inherently incredible or inconsistent with the overwhelming weight of the evidence, the Board must defer to an ALJ’s credibility finding even if other evidence in the record could have been given greater weight. The Board then concluded that it was compelled to affirm the ALJ’s credibility determinations and decision.
The Board also noted in a footnote that the ALJ’s determination that the airman “did not falsify the application by failing to list all prescription drugs because, at the moment respondent completed the application, she was not using the medications, is wrong as a matter of law.” According to Board precedent, “brief abstentions from a medication do not mean that an applicant is not ‘currently’ using the medication.” For the record, the Board then stated that “[o]ur opinion here does not represent affirmation of the law judge’s incorrect statement concerning the issue of current use of medications.”
This case is consistent with recent cases in which the Board, and several federal circuit courts of appeal, have held that an airman’s subjective knowledge when filling out the medical application is a factual and credibility determination that must be made by the ALJ at a hearing. If the airman can convince the ALJ that he or she didn’t know or understand that an answer was false, then the Board will have to defer to that determination unless it is contrary to the overwhelming weight of evidence. Unfortunately, that is usually a very difficult task in intentional falsification cases.