Staying Legal: To Tell The Truth

The man stated that he always believed that the question dealt only with matters concerning drugs and alcohol. He claimed that an FAA medical examiner had told him this and he relied upon it. He stated further that a second AME told him the same thing when filling out his second and third application.

In light of the man’s testimony the law judge ruled that he had successfully rebutted the Administrator’s case of intentional falsification, concluding that it was clear that the man had no intention to falsify let alone be fraudulent in giving the answers he did on the applications. The law judge reversed the FAA’s emergency order of revocation. The FAA appealed this finding to the Board and it reversed the law judge.

The Board rejected the man’s argument that he did not make an intentionally false statement because he believed the question only concerned drugs and alcohol. Secondly it said that the law judge erred by requiring the Administrator to prove that the man had the specific intent to deceive the FAA rather than the lesser burden of proving an intent to falsify. The Board then reversed the law judge and affirmed the order of revocation.

On appeal again to the DC Circuit Court of Appeals this man argued that the Board diverged from past precedent in two ways: (1) they failed to address the matter of the man’s credibility as determined by the law judge who heard the case; and (2) by applying an improper standard for the intent element of the offense of intentional falsification. The Circuit Court of Appeals again agreed with the airman.

The court in siding with the airman here said that the law judge’s credibility decision in favor of the airman was paramount and that the Board’s decision in reversing the law judge without overturning his credibility determination is arbitrary and capricious. Further, the court said that the Board’s …” failure to give the law judge’s implicit credibility determination the requisite level of deference was contrary to the Board’s precedent and therefore, was arbitrary and capricious.”

In this case it is clear that the impression of the law judge as regards the truthfulness and credibility of the accused is very important since he sees him, listens to him, and therefore is in the best position to decide whether or not he is being truthful in his testimony.

This case is a little different from most because the appellate court focuses its attention on the credibility decision of the law judge and on that issue reverses in favor of the airman.
The basic rule here is that … the appellate court may set aside agency action (FAA) … if it finds it to be arbitrary, capricious, an abuse of discretion, or, where there has been a hearing, the agency action is unsupported by substantial evidence.”

These two new decisions provide a more substantial basis for an accused airman to develop his defense in a more positive and precise way having the support of the appellate court decisions described here. Comments to aerolaw@att.net.

Stephen P. Prentice is an attorney with an Airframe and Powerplant certificate, is an ATP rated pilot, and is a USAF veteran. Email: aerolaw@att.net