In Administrator v. Roarty, the FAA issued an emergency revocation order charging the airman with violations of FARs 67.413(a)(failure to provide information) and 67.403(a)(1)(making fraudulent or intentional false statement) arising from the airman’s failure to disclose the revocation of his medical certificate on a later application for a medical certificate (the airman’s medical certificate was previously revoked for failing to disclose a DUI conviction on two prior medical applications). The airman appealed the order to the NTSB.
At the hearing, Judge Mullins granted the FAA’s motion for summary judgment on the FAR 67.413(a) violation and suspended the airman’s medical certificate pending the FAA’s receipt from the airman of the omitted information and the FAA’s determination that the airman was qualified to hold a medical certificate. With respect to the intentional falsification claim, the airman claimed that “he did not purposely answer Question 13 incorrectly in filling out his 2003 medical application, and claimed that there was no reason for him to falsify his application”. The FAA argued that it was not credible for the airman not to have remembered the revocation and, thus, his answer on the application was intentionally false.
Judge Mullins held that the airman did not intentionally falsify the application but, instead, acted negligently and apparently made a mistake. He also observed that the airman’s prior revocation was contained in the FAA’s records. The FAA appealed the Judge’s determination to the full Board arguing that the airman’s statement was negligent rather than intentionally false.
On appeal, the Board reluctantly affirmed the Judge’s credibility determination that the airman had simply made a mistake and answered the question incorrectly. The Board observed that “we are constrained to conclude that we have no basis to characterize the law judge’s credibility determination in favor of respondent arbitrary or capricious.” The Board blamed the FAA for leaving it in a position where it had to affirm a finding with which it clearly disagreed.
The Board felt the FAA did not cross-examine the airman aggressively enough and did not vigorously pursue evidence of a possible motive for the airman to intentionally falsify his application. It also observed that if the airman had made similar arguments in connection with his previous enforcement action, that allegation would be relevant to the airman’s credibility. However, the FAA did not present evidence of that allegation at the hearing and it thus remained unsubstantiated in the record.
All in all, it is obvious that the Board felt the airman had intentionally falsified his medical application. But because the FAA did not pursue the case as the Board felt it should, the record did not contain the evidence the Board needed to be able to reverse Judge Mullins’ dismissal of the intentional falsification charge. The airman lucked out. Not only did he have a sympathetic judge, but he also had an FAA attorney that probably believed the case was a “slam-dunk” for revocation and thus was not as thorough or aggressive as hindsight ultimately dictated was necessary. And the Board followed the law and did its job, despite its disagreement with Judge Mullins’ decision.
Unfortunately, the NTSB opinion never includes the entire story. Although this is a good result for the airman, don’t forget that the airman still needs to convince the FAA that he is qualified to hold a medical certificate. In this case, the airman’s story is definitely not over.
