In a recent intentional falsification case, the NTSB went to great lengths to explain and reaffirm the standard of review it will use in evaluating an administrative law judge’s (“ALJ”) credibility determinations. In Administrator v. Porco, the FAA charged the airman with failing to disclose a DWI arrest and driver’s license suspension on her application for medical certificate. The airman appealed the FAA’s emergency revocation order and, after a hearing, the ALJ determined that the airman had violated FAR 67.403(c) (making an incorrect statement on a medical application) but not FAR 67.403(a)(1) (making a fraudulent or intentionally false statement on a medial application) as alleged by the FAA. As a result, the ALJ affirmed revocation of the airman’s medical certificate, but not any of the airman’s other certificates.
On appeal, the full Board determined that the ALJ’s decision lacked clarity and it remanded the case to the ALJ for him to clarify his findings of fact. After remand, the ALJ issued a written decision in which the ALJ concluded that the airman “was credible to the extent that she testified as to receiving such erroneous legal advice and relying thereon in providing her answer to that question, and has, accordingly, determined that said answer was neither fraudulent nor intentionally false.” Although the ALJ did not include any factual findings to support this conclusion, it served as a basis for the ALJ to again revoke the airman’s medical certificate.
Unhappy with the ALJ’s decision on remand, both the airman and the FAA appealed to the full Board. After a detailed explanation of the evidence in the case, the Board determined that the case presented an “opportunity to discuss the historical development of our credibility doctrine and to clarify the Board’s standard of reviewing our law judge’s credibility findings to prevent future confusion by our law judges, the Administrator, future respondents, and future Boards.” The Board concluded its lengthy discussion of the issue by reaffirming its “long-held standard, originating in the cases of Jones and Smith, of deferring to a law judge’s credibility findings absent a determination that such findings are arbitrary and capricious as the only standard of review in resolving credibility issues. We believe this standard properly provides the high level of deference which our law judge’s credibility findings should be given.”
Using this standard, the Board held that the ALJ’s finding on the issue of the advice the airman received from her attorney was arbitrary and capricious because the ALJ made no specific findings of fact as to why he believed the airman on that single issue when he did not believe the rest of the airman’s testimony. Additionally, the Board noted that the ALJ’s conclusion was contrary to extensive evidence that the airman otherwise understood the question and the fact that her answer was false. As a result, the Board reversed the ALJ’s decision on remand regarding the airman’s violation of FAR 67.403(a)(1) and revoked the airman’s airline transport pilot, flight instructor, medical and all other airman certificates.
Factually, this case presents a familiar, and unfortunate, scenario. From a legal perspective, the case contains a fairly detailed examination and discussion of how the standard of review on credibility issues has evolved and morphed. But we now have a decisive case upon which to rely when analyzing an ALJ’s credibility determinations. Although aviation attorneys will still have factual arguments to make, at least we know what standard the Board will use to review those arguments.