A lot's at stake when completing your medical
Federal Aviation Regulation (FAR) 67.403 states that:
(a) No person may make or cause to be made--
(1) A fraudulent or intentionally false statement on any application for a medical certificate or on a request for any authorization for special issuance of a medical certificate (authorization) or statement of demonstrated ability (SODA) under this part; ...[and]...
(b) The commission by any person of an act prohibited under paragraph (a) of this section is a basis for--
(1) Suspending or revoking all airman, ground instructor, and medical certificates and ratings held by that person;
(2) Withdrawing all authorizations or SODAs held by that person; and
(3) Denying all applications for medical certification and requests for authorizations or SODAs.
An intentional false statement is defined in law as having three elements: a false or untrue representation; in reference to a material fact; and made with knowledge of its falsity. In FAA enforcement proceedings against an airman's certificate, it is the FAA's burden to prove all three elements in order to establish a violation of FAR 67.403(a)(1). It is not necessary for the FAA to prove that the airman had any intent to deceive or that the FAA relied on the false information.
In a recent case, the NTSB affirmed the FAA's order to revoke the private pilot and medical certificates of an airman who answered "no" to Question 18(v), which asks whether one's driving privileges have been denied, suspended, cancelled, or revoked. In fact, the airman's driver's license had been suspended on four occasions for refusing a Breathalyzer test and on one occasion for a DUI. The airman explained that he thought the question was asking about "any driving suspensions that would affect a medical certificate," and he didn't think any of his previous events would disqualify him for a medical certificate because they had happened 10 to 20 years prior to the time of his application. The airman also believed that the FAA was already aware of his history because he knew that when he signed the medical application form he was authorizing the FAA to access his driving record through the National Driver Register.
However, the NTSB judge concluded that the airman "gave [the question] the meaning he wanted it to have, not the meaning that is plainly stated on its face." On appeal, the NTSB deferred to the judge's credibility choice and followed prior cases that "revocation of airman and medical certificates is the appropriate sanction" for intentional falsification "because such falsification demonstrates that an airman lacks the necessary qualifications to properly exercise the privileges of these FAA certificates."
In another case, the credibility choice of the NTSB judge favored the airman. In that case, the FAA sought to revoke the airman's pilot and medical certificates because he failed to answer Question 13, which asks whether a medical certificate has ever been denied, suspended, or revoked. In fact, the airman's medical certificate had been revoked a few years earlier for failing to truthfully answer another question on the application form. At the hearing, the airman claimed that he did not purposely answer the question incorrectly, arguing that there was no reason for him to falsify since he knew the FAA kept its old records. The airman said it was an unintentional mistake. The NTSB judge agreed that the airman did not know his answer was wrong when he gave it.
When the FAA appealed, the NTSB deferred to the judge's credibility choice, but did so reluctantly. "We may not reverse the law judge simply because, on the appellate record, we might come to a different conclusion," the NTSB said, noting that it was difficult to believe that an experienced airman would forget about an earlier revocation or would not realize the importance of accurate answers on a medical application. The NTSB also criticized the FAA's handling of the case in not aggressively cross-examining the airman and not calling any witnesses or vigorously pursuing a motive to intentionally falsify the application. It's hard to ignore the message that the NTSB was apparently sending the judge and the FAA, and the outcome of future cases could be different.
Next month we'll examine two more cases of enforcement action focused on medical applications.
Kathy Yodice is an attorney with Yodice Associates in Washington, D.C., which provides legal counsel to AOPA and administers AOPA's legal services plan. She is an instrument-rated private pilot.
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