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For the record: Deal or no deal?

The FAA’s new settlement policy

Effective September 30, 2020,  the FAA adopted a policy that provides the option of “prompt settlement” for legal enforcement actions against airmen alleged to have made a fraudulent or intentionally false statement on a medical application or other required medical documents.

Although touted as a time-saving opportunity for airmen, the policy seems to offer little incentive in the typical case and is no substitute for meaningful change to the medical application’s confusing questions that often are at the heart of many of these matters.

If the FAA alleges an airman knowingly made a false statement on a medical application or other medical document, under FAR 67.307 all FAA certificates and ratings held by that airman may be suspended or revoked. In a typical case, an airman faces immediate revocation of all certificates and a mandatory one-year wait before being able to apply for new airmen certificates, which also means retaking all required knowledge and practical tests. Although rare, the FAA may also refer falsification cases to the Department of Justice (DOJ) for criminal prosecution, where penalties include fines up to $250,000 and/or imprisonment up to five years.

The new policy is said to get an airman back in the air sooner—not by mitigating the severe sanctions, but by eliminating the FAA’s investigation and case evaluation. The policy states that an airman “would have the opportunity to apply for [new] certificates generally sooner than under the current process because much of the investigation and evaluation processes would be abbreviated or eliminated.” This affords the airman—and the FAA—“the opportunity to better allocate resources.”

Under this policy, the FAA would send a Letter of Investigation to the airman suspected of violating FAR 67.307 notifying the airman is under investigation for an apparent violation and that the airman may, within 10 days, request consideration for a “prompt settlement.” If consideration is requested, the FAA will determine the airman’s eligibility; the policy does not apply to an airman who is a repeat offender. If eligible, the airman will be sent a settlement agreement that must be executed within 10 days of receipt. Importantly, the airman is not provided with any opportunity to review any of the FAA’s evidence. The airman must agree to immediate revocation of all the airman’s certificates, along with the mandatory one-year wait, and waive all appeal rights and any claims against the FAA. The settlement doesn’t affect any criminal prosecution by the DOJ.

This policy may interest airmen who don’t wish to challenge any of the FAA’s allegations, but there is little incentive for others to waive their opportunity to appeal the case to an NTSB law judge. At a hearing, the FAA will have the burden of proving its case and may not be successful if it lacks the evidence to show that the airman knowingly made a false statement or the law judge finds that the airman simply misunderstood the question.

The FAA would have better directed its efforts—and helped the nearly 400,000 airmen who fill out a medical application every year—simply by clarifying the application’s questions as recommended by the NTSB since at least 2010 and by the Government Accountability Office since 2014. Perhaps no medical application question lends itself to greater misunderstanding than question 18.v., which pertains to an airman’s arrests, convictions, and administrative actions involving DUIs, among other related issues. In 2014, the GAO reported that 13 out of 20 medical experts it consulted suggested simplifying question 18.v., and FAA officials “used a computer program to analyze the readability of the question and discovered that an applicant would need more than 20 years of education to understand it.”

Likewise, in one case involving an airman who confused the requirements of questions 18.v. and 18.w., the NTSB called for the FAA to revise the medical application to more clearly solicit information, warning that “the [FAA] may wish to take this opportunity to review the medical certificate application form carefully, and amend it to avoid an applicant misconstruing a question…. Unless, and until, the [FAA] does so, certain cases may very well require a detailed factual determination by the law judge in ascertaining whether [the airman] intended to answer a question falsely.”

However, the FAA has not made a meaningful effort to clarify the language of the medical application. AOPA submitted comments to the FAA in 2019, encouraging the FAA to make these changes. AOPA continues to engage the FAA and press for substantive revisions to the medical application. In the meantime, airmen who are subject to allegations of intentional falsification should carefully consider their options before agreeing to a “prompt settlement” under this new policy.

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Jared Allen

Mr. Allen is AOPA’s Legal Services Plan (LSP) senior staff attorney and is an instrument-rated private pilot. He provides initial consultations to pilots through the LSP when the FAA has contacted them about potential FAR violations. Jared has helped numerous pilots successfully navigate through compliance actions.

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