September 1, 2009
By John S. Yodice
Here is a case that again stresses the importance of not being too casual, but rather being extremely precise, in completing an application for an FAA medical certificate. Otherwise, the result could end your flying. This pilot had his private pilot certificate and second class medical certificate revoked on an emergency basis (meaning immediate grounding before any opportunity to defend) for making “a fraudulent or intentionally false statement on any application for a medical certificate” in violation of FAR 67.403(a)(1).
Although none of us would condone the intentional falsification of an FAA medical application form, most of us who must complete the form on a regular basis can attest that the form is quite extensive, complicated, and sometimes seemingly irrelevant to the issue of the medical qualification. After you have done a number of them, it is easy to become complacent. At the same time, the FAA has been especially diligent in bringing revocation proceedings, the ultimate sanction, against any airman suspected of falsifying. The FAA does not easily abide what some airmen have called “innocent mistakes” made as they labor through the form.
The legal case I am reporting involves question 18v on the form, a question that many pilots have found confusing (see “ Pilot Counsel: No ‘Statute of Limitations,’” July 2009 AOPA Pilot). Question 18, “medical history,” in context, lists a full panoply of medical conditions in an alphabetical sequence, with associated yes and no boxes. They start with 18a—“frequent or severe headaches,” proceed through to 18u—“admission to hospital,” then skip 18v and 18w and proceed to 18x—“other illness, disability, or surgery.” It is easy to run through these too quickly. Question 18v, buried in Question 18 out of sequence, asks the following much more complex question:
“Have you ever in your life…had any of the following? Convictions and/or Administrative Action History, History of (1) any conviction(s) involving driving while intoxicated by, while impaired by, or while under the influence of alcohol or a drug; or (2) history of any conviction(s) or administrative action(s) involving an offense(s) which resulted in denial, suspension, cancellation, or revocation of driving privileges, or which resulted in attendance at an educational or rehabilitation program.”
[Question 18w, not relevant to this case, asks for “history of nontraffic conviction(s) (misdemeanors or felonies).”]
On his November 3, 2008, application for an FAA medical certificate, the pilot answered yes to Question 18v, and in the explanation box below the question, said, “previously reported.” The FAA alleged that this answer was false because the pilot did not disclose his most recent driver’s license suspension that occurred several months earlier on June 21, 2008. According to the pilot, he did report this suspension. He did so to the FAA Security Division within 60 days as required by FAR 61.15 (see “ Pilot Counsel: Pilots Driving Records Continue to be Troublesome,” February 2007 AOPA Pilot). To the contrary, the FAA argued that in the medical application form the pilot was actually referring to a 2003 driver’s license suspension, rather than the suspension that arose out of the June 2008 violation.
The pilot appealed the revocations to the National Transportation Safety Board. He argued that the instructions were confusing, that he did not intend to make a false statement on the application, and that he believed it was sufficient that he reported the violation to the FAA Security Division in order for him to say “previously reported.” After a hearing before an administrative law judge, the judge rejected the pilot’s arguments. The law judge found that the pilot knew in 2006 that he had to report the motor vehicle violations in the explanation box on his 2006 application, and that the idea that the pilot somehow forgot that requirement two years later on his 2008 application was not credible. The judge affirmed the revocations.
On further appeal to the full board, the FAA revocations were again affirmed. Most significantly for the rest of us, the board warned in this case “that failure to read questions on the medical application carefully enough to supply accurate answers is not a basis to dispute a charge of intentional falsification.” The board concluded that the revocation of the two certificates was the appropriate sanction for the pilot’s falsification.
Here is an additional warning. The application form currently in use has been revised. It adds “arrests” to Question 18v (the question is no longer limited to convictions and administrative actions) and adds Question 18y, “Medical disability benefits.” These revisions considerably expand the scope of the question, and could increase the opportunity for mistakes. Forewarned is forearmed.
AOPA’s legal counsel since 1963, John S. Yodice pilots a Cessna 310.
Pilot Health and Medical,
The FAA on Feb. 23 issued a special airworthiness information bulletin recommending preflight inspection of Robinson R44 and R44 II main rotors.
Sen. James Inhofe (R-OK) talks about the Pilots Bill of Rights II, which includes a provision to allow private pilots to fly an aircraft with up to six seats, weighing up to 6,000 pounds, VFR or IFR, without a third class medical certificate. The bill also reforms the NOTAM system, and provides more legal protections for pilots accused of regulatory infractions.
The FAA has released an eight-minute video providing aviation medical examiners with guidance on the agency's new obstructive sleep apnea policy, which takes effect March 2.
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