Following recent Court of Appeals’ reversals in falsification cases, the NTSB has affirmed an administrative law judge’s (“ALJ”) dismissal of a claim in an FAA emergency order revoking a mechanic’s airman certificates for allegedly falsifying an application for a mechanic certificate in violation of FAR 65.20(a)1. In Administrator v. Alvarez, the FAA alleged that the mechanic provided a false answer to a question which asks, “have you ever had an airman certificate suspended or revoked?” when, in fact, the mechanic’s private pilot, flight engineer, and medical certificates had previously been suspended for his failure to report a DUI conviction on his medical certificate application. (The FAA also alleged that the airman had violated 49 U.S.C. 44709 when he failed a re-examination and subsequently failed to surrender his certificate while he scheduled another test. However, I will discuss the issues associated with the results of that claim another time.)
At the hearing before the ALJ, the mechanic testified that he checked “no” on the application because he assumed that the question only applied to mechanic certificates. The mechanic explained that he previously completed an application for renewal of his inspection authorization (“IA”) and was told by a local FAA inspector that he should check “no” in response to that application’s question of whether his “mechanic certificate and/or ratings [had] been revoked or suspended during the 3-year period preceding [the] application.” The ALJ determined that the airman did not falsify the application because he had no knowledge of falsity. The ALJ found that the mechanic was credible and had trusted the FAA inspector who advised him to answer “no” on the IA application, which asked a similar question. As a result, the ALJ dismissed the claim. Not surprisingly, the FAA appealed the ALJ’s dismissal to the full Board.
On appeal, the FAA cited 49 U.S.C. § 40102(a)(8) (defining “airman” as a pilot, mechanic, or crewmember) in support of its argument that the mechanic should have answered “yes” to the question of whether he ever had an airman certificate suspended or revoked, since the question included all airman certificates, and not just the mechanic certificate. The FAA also contended that the mechanic’s previous falsification violation rendered him generally not credible and the mechanic knew that the reference to “airman certificate” on the application includes all certificates because the mechanic had “a great deal of experience in completing such applications.”
The Board initially noted that the ALJ made a credibility determination in favor of the mechanic regarding his lack of knowledge of the falsity of his answer. As a result, in order to succeed the FAA had the burden of proving that the ALJ’s credibility determination was “arbitrary, capricious, or clearly erroneous.” The Board went on to observe that the FAA did not deny that an inspector may have instructed the mechanic that the question only referred to his mechanic certificate, nor did the FAA provide evidence that the inspector did not or would not do so.
Although the Board recognized its precedent regarding the plain meaning of questions on FAA application forms, it found that the case presented “a unique fact pattern.” As a result, the Board “decline[d] to intrude into the province of the law judge” and rejected the FAA’s appeal in a decision consistent with the admonitions it received in the Dillmon and Singleton cases decided by the District of Columbia Circuit of the U.S. Court of Appeals.
It is nice to see the Board following the law and its own precedent in spite of the fact that it meant the FAA lost. I think the Board’s reference to the “unique fact pattern” is a signal that it will be closely scrutinizing falsification cases in which an airman is able to persuade the ALJ that he or she did not have knowledge the false answer contrary to the FAA’s allegations. Thus, although it will still be a challenge, the door remains open for airmen to challenge revocation orders based upon allegations of falsification.
