Staying Legal: To Tell The Truth

Scienter and the FARs

Scienter is defined as a mental state embracing intent to deceive, manipulate, or defraud. Scienter means to have guilty knowledge. An act is done knowingly if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.

Some years ago there was a popular TV show called “To Tell The Truth.” Some of us may remember that panelists tried to deceive others into believing that they were telling the truth about various things. Two recent Appellate FAA enforcement cases brought to mind that show and the difficulty in maintaining a defense in FAA enforcement cases that involve intentional falsification.

There are several areas of the FARs that deal with this issue of scienter or as some may say guilty knowledge. Intentional falsification of data provided to the FAA is a common area of concern.

Pilots are all too familiar with FAR 67.403a1 that deals with intentional falsification of data on the application for medical certificate and other logs, reports, and records that may support the application. If you are a pilot take time to read this section as it has added some important areas of interest. The most common, among others, being failure to report DUI violations or administrative actions. Mechanics are also frequently in violation under FAR 43.12a for placing intentionally false data in aircraft maintenance records. In their haste to complete “paperwork” mechanics will sometimes negligently or mistakenly enter false or misleading data in maintenance records. This may lead to a further inquiry by inspectors involving FAR 43.12a. Flight instructors most commonly will enter erroneous flight times and certifications in pilot logbooks which lead to violations under FAR 61.59a2. All of these violations involve the use of the terms fraudulent or intentionally false in their description of the violation and this gives rise to the discussion of scienter or the issue of the intent of the airman. This is all of some major concern because a finding of a violation of any of these sections always results in the immediate emergency revocation of all certificates held by the violator.

Recent cases
Two recent cases however do shed some light on the issue of the intent required to be found in these cases. It seems to offer some relief to the airman attempting to present a defense, which is difficult at best. In most of these cases the FAA simply makes a motion for summary judgment and it usually prevails as in the first case. Although the cases deal with pilots they have a direct connection to the issue of intent when it comes to cases involving mechanics, flight instructors, or others who may be charged with the similar violations of the FAR.

The first case
The first case deals with an airman who allegedly made an intentionally false statement on his application for a medical certificate. The facts show the airman was pulled over at a driver checkpoint and found to have a blood alcohol level of 0.08 or more. In his state, this results in a civil license revocation and his license was revoked for 30 days. He was not charged with a crime.

Some time later he filled out his application for an aviation medical certificate and under medical history answered “no” to the question involving “… any conviction or history of any administrative action … which resulted in … revocation … of driving privilege …”

A short time later he received a letter from the FAA saying that it had learned of his license revocation and it was investigating whether he had intentionally provided false or fraudulent information in his response to question 18v in that he did not reference his alcohol related civil offense. The airman denied providing intentionally false information. He explained that he had not been convicted of any alcohol-related charges and that he did not look upon the revocation as a revocation due to a conviction but only as part of the civil process. He wished that he had asked FAA for a clarification of administrative action and that he was certain that he was not to answer yes until he had been convicted of DUI.

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