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Defending Against An Intentional Falsification Charge: A Question Of Intent

by Greg Reigel 1. January 2010 00:00
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The District of Columbia Circuit of the United States Court of Appeals recently issued two opinions addressing two airmen's attempts to defend themselves against FAA claims that they intentionally falsified their medical certificate applications. In both cases, the Court reversed the National Transportation Safety Board's ("NTSB") approval of the FAA's revocation order, although for slightly different reasons.

The Court admonished the NTSB's seemingly biased attempts to rubber-stamp the FAA's revocation orders. Additionally, the decisions both highlight a defense airmen may assert when appealing an intentional falsification claim.

The Cases

Singleton v. FAA. In Singleton v. FAA, the FAA issued an emergency revocation order revoking the airman's certificates based upon the airman's alleged false answer to Question 18v (asking the airman to disclose any history of alcohol/drug convictions or drivers license suspensions/revocations)on his application for medical certificate in violation of FAR § 67.403(a)(1) (Prohibiting a person from making fraudulent or intentionally false statements on an application for a medical certificate). At the time the airman completed his medical application, the airman's driver's license had been suspended in connection with an arrest for driving under the influence ("DUI"). However, the airman answered Question 18v "no".

The airman appealed the revocation order and the FAA subsequently moved for summary judgment. The FAA argued that the airman's medical application along with the court documents the airman previously provided to the FAA regarding the DUI arrest and license suspension demonstrated all elements of an intentional falsification claim. In response, the airman argued that "whether or not he had actual knowledge of falsity or intentionally made false statements presents a material issue of fact to be resolved after a hearing on the merits." The Administrative Law Judge ("ALJ") concluded that no material issues of fact existed and the undisputed evidence proved the FAA's claim. He granted the FAA's motion and the airman then appealed to the full NTSB.

On appeal, the airman reiterated his argument that a genuine issue of material fact existed that could not be decided without a hearing to examine the "intentionality" of the airman's answer on the application. The Board began its analysis by observing that the FAA was required to prove that the airman (1) made a false representation, (2) in reference to a material fact, (3) with knowledge of the falsity of the fact in order to prevail on an intentional falsification claim.

In response to the airman's argument, the Board initially noted that an airman's failure to consider a question on a medical application carefully before providing an answer does not establish a lack of intent to provide false information. Further, it reiterated that the two questions on the medical application about traffic and other convictions are not confusing to a person of ordinary intelligence. The Board then observed that the term "administrative action" has a plain meaning and is not confusing.

The Board held that the question was not confusing and "where the DUI infraction at issue clearly begs candidness with the Administrator," the airman is precluded from claiming he did not knowingly provide a false response. The Board went further and indicated that the airman's understanding of Question 18v was not even relevant to whether he had the knowledge required to make an intentionally false statement.

The Board concluded that the airman "was aware of the statement's falsity, in that he knew that his driving privileges had been revoked, and he knew that the reason for that revocation was because of an alcohol-related incident." As a result, the NTSB affirmed the ALJ's grant of summary judgment to the FAA despite the airman's argument that questions of fact existed regarding the issue of his "intent" to falsify.

However, the Court of Appeals disagreed. The Court held that the airman's understanding of the form was relevant to the offense of intentional falsification because § 67.403(a)(1) requires proof that the "airman subjectively understood what the question meant." Thus, the FAA must prove, and the NTSB must find, that the airman understood the question to which he or she provided an allegedly false answer.

As a result, the Court concluded that the grant of summary judgment to the FAA without giving the airman a chance to present evidence bearing on his understanding of the question was improper.

Dillmon v. NTSB. In Dillmon v. NTSB, the FAA issued an emergency revocation order revoking the airman's certificates based upon the airman's alleged false answer to Question 18w (asking the airman to disclose any history of non-traffic misdemeanor or felony convictions) on his application for medical certificate in violation of FAR § 67.403(a)(1) (Prohibiting a person from making fraudulent or intentionally false statements on an application for a medical certificate). At the time the airman completed his medical application, the airman's driver's license had been convicted of felony bribery. However, the airman answered Question 18w "no".

The airman appealed the FAA's revocation order to the NTSB and a hearing was held before an ALJ. At the conclusion of the hearing, the ALJ determined that the airman was a credible witness and did not intentionally falsify the medical application because he believed Question 18w was only concerned with alcohol and drug convictions, and did not include his bribery conviction. The ALJ then reversed the FAA's emergency revocation order. The FAA appealed the ALJ's decision to the full Board.

On appeal, the Board rejected the ALJ's finding that the airman did not make an intentionally false statement. The Board also determined that the ALJ improperly required the FAA to prove that the airman had the specific intent to deceive the FAA, rather than the lesser burden of proving intent to falsify. As a result, the Board reversed the ALJ and affirmed the FAA's emergency revocation order. The airman then appealed.

The Court of Appeals found that the Board's reversal of the ALJ was improper in two respects. First, the Court observed that the Board's reversal completely ignored the ALJ's credibility finding in the airman's favor. Without even acknowledging that the ALJ had made a credibility finding, the Court held the Board's decision inconsistent with Board precedent requiring deference to an ALJ's credibility determinations.

Next, the Court determined that the Board's conclusion that the airman knew he had been convicted of a non-traffic offense ignored whether the airman knew his answer to Question 18w was false. Since Board precedent holds that an airman's subjective understanding of the questions in the medical application is relevant, the Court concluded that the Board's failure to follow its own precedent, without explanation, was reversible error.

Conclusions

What does this mean for airmen? Well, neither of these cases precludes an ALJ or the NTSB from finding that an airman did, in fact, understand that a question required a "yes" answer when the airman actually answered "no". Further, if an airman is successful in convincing an ALJ that he or she lacked intent, the Board may still reverse the ALJ's credibility determination, provided that it uses the appropriate standard, or the Board may make factual determinations contrary to those of the ALJ is they are supported by substantial evidence.

However, this may not be the case for long. In the Dillmon Court's concluding remarks it stated that "the FAA may revisit its interpretation of the intent element of FAR § 67.403(a)(1) and decide it rejects the airman's subjective interpretation of the questions in the medical application." I wouldn't be surprised if the FAA takes this very action and eliminates an airman's ability to raise this defense. And, unfortunately, if it does the Board will be required to defer to that decision.

At least for now, these cases mean that an airman can defend against an intentional falsification claim by arguing that he or she did not know that an answer was false. The airman should be given the opportunity to argue this defense to an ALJ. However, absent unusual circumstances, in situations it will still be difficult to convince an ALJ and/or the Board that the airman did not know his or her answer was false at the time the airman completed the medical application.

For more information regarding aviation law, safety and security, e-mail Greg at greigel@aerolegalservices.com or visit his website at www.aerolegalservices.com.

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Greg Reigel

Progress in Aviation Security?

by Jeremy Cox 1. January 2010 00:00
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Frankly everyone on this side of the pond including the Commander in Chief, President Obama are disgusted by the significant failure of the international airport security systems that allowed the 23 year old, Umar Farouk Abdulmutallab to pack his underpants with the organic explosive compound Pentaerythritol (PETN) before departing Lagos bound for Detroit via Amsterdam. Fortunately he only succeeded in burning his privates instead of bringing down the NWA Airbus A330 over U.S. soil on Christmas Day that which was his plan.

From a General Aviation perspective, all of us rosined up our finger tips to type letters of disgust in response to the proposed Large Aircraft Security Program that the Department of Homeland Security's' Transportation Security Administration (DHS/TSA) attempted to foist upon us last year; now we see that the brain-drain at the DHS/TSA are truly smoking their lunches instead of eating in the canteen, proof positive of this provided by the emergency security initiatives that this all-powerful, military-like branch of the government implemented on Boxing Day:

  • Passengers subject to "pat-down" searches before boarding, on top of the usual security checks
  • Limit of 1 carry-on for international flights (instead of a carry-on AND a laptop)
  • No access to hand luggage at all during the flight
  • You must stay in your seat for the last hour of flight
  • A ban on leaving possessions or blankets on laps during this hour
  • On-board entertainment systems that display map information will not be turned on

The DHS/TSA Secretary, Ms. Janet Napolitano recently stated at a press conference that was held 'post chrimbo' that the organization that she leads "...has a layered approach to security that allows us to surge resources as needed on a daily basis. We have the ability to quickly implement additional screening measures including explosive detection canine teams, law enforcement officers, gate screening, behavior detection and other measures both seen and unseen. Passengers should not expect to see the same thing at every airport…"

Maybe behaviour detection would be better employed in the DHS/TSA offices in Washington, DC instead of continually experimenting with today's modern-day airline passenger, whom now is treated like a noisome mutant piece of self-loading freight, instead of a valued fare paying customer and free-thinking human being. Watch out Ms. Napolitano, the people of this country might choose to exercise their U.S. Constitutional Bill of Rights, Eighth Amendment to prohibit the government from imposing cruel or unusual punishments upon 'We the People.'

The Airlines are no better either. Since deregulation their 'modi operandi' has been to lie-to and cheat their passenger clients, while the executive management continues to stuff their pockets either with the constant hand-outs given by the government, or with the monies freed-up through the cost and service cutting schemes that these villain executives have palmed-off onto their paying public. Did you know that domestic carriers gorged themselves at the trough shortly after the DHS/TSA was formed, and $1.5 Billion was dumped into the carrier's greedy mouths to help them off-set the cost of stiffening up their X-Ray and Metal-Detecting procedures? Of course now the Airlines conveniently transfer the cost of DHS/TSA security measures to their customers, just like they do with how they pretend to pay their share of the FAA's budget, i.e. they pay nothing, but still get money! Don't even get me started on the hand-out (Business Interruption Insurance) that they all received post 9/11. That appeared to be a bottomless pot at the time; And still the Airlines are bankrupt?!?

Surely these blatant acts of corruption and incompetence must surely all bode well for all of us within the General Aviation field instead of hurting us? Unfortunately not. The popular media hates us; the man and woman on the street hate us; even many elected representatives in Washington hate us. But I would contest that it is less hate, and instead is more like envy. We represent a transportation system that still allows for its passengers to drive up to the door of their waiting aircraft. Once seated their 'flight' starts and taxies for take-off, all the while the much envied riders can still 'yack' on their cell phone, eating or drinking whatever they like. Carrying whatever they need to bring with them on their trip. Going bear hunting in Alaska? Don't mind my Winchester 44-40 carbine over there. Going to a vintage wine auction in New York? Don't mind my case of 1787 Chateau Lafite behind my seat; I'm feeling rather stinky, do you mind if I go in the back and take a shower while we are leveling off? Oh while I'm gone, would you like to bring out your Theuns Prinsloo Timmra folding knife and do some wood carving, so you are completely relaxed before they serve our dinner to us?

And why not, eh?

Unfortunately just like it is still required for Navigators to be on board U.S. aircraft while they are operating within central Russian airspace; our government buffoons will most likely still proceed in passing an LASP rule whereby a Federal Air Marshall must ride on all of our flights, and the 3 ounce rule for liquids must be adhered to! Progress? Yeah-you show it to me cause I'm not seeing it!

When I read about the Federal Air Marshall Deputy training program that the DHS/TSA offers to any gun-happy, eligible Airline Pilot, I think how simpler it might be if upon check-in, all passengers were issued a machete, a can of mace and a truncheon. Trust me, there won't be any more instances of attempted terrorism on board commercial aircraft, including the type of terrorism created by the DHS/TSA and certain Airline Employees themselves.

Maybe when I become the King of the World, I will implement these changes. In the meantime we shall all try and keep our heads down in our General Aviation Industry. I do hope that you have an absolutely fabulous 2010.

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Jeremy Cox

The Never Ending Value of Training

by Darryl Abbey 1. January 2010 00:00
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Whether a pilot is upgrading to a Cessna 206, a Piper Matrix, a Robinson R44, an Embraer Phenom or a Gulfstream G550, there is one thing that insurance underwriters are likely to require: training in the new make and model to be flown.

This might be in the form of differences training if a similar make and model have been operated or initial training and dual operation if the new aircraft is a different type than the pilot has operated in the past. Training can range from a certified training program offered by an operators group (like Mooney or Baron) and which the underwriters recognize as a quality program to full motion simulator programs for high performance/high value aircraft.

Regardless of the make and model, the fundamental reason behind this requirement is always the same: Safety of flight. We have all heard or read the stories about the weekend warrior who got caught in deteriorating conditions and ran out of time, altitude, situational awareness, power or any number of other critical factors resulting in an unfortunate incident. While product failure, poor maintenance or other equipment related issues may be a factor, far more aircraft incidents include, at least as a partial factor, pilot error somewhere in the fault tree that led to the incident. Obviously, insurance carriers have a vested interest in minimizing loss potential. After all, it is there money potentially at risk if an aircraft incident does occur. However, safety of flight is also in the best interest of the operator, his passengers and their respective families and the owners of the property over which he or she is flying. We would never think of handing the keys to a Porsche 911 GT3 to a sixteen year old that had just learned to drive the family Taurus and yet there are some pilots who seem to feel that moving from a Bonanza to a Citation Jet is a reasonable transition with minimal risk.

If we agree that some form of initial training in type is a good idea, then we can move on to the matter of recurrent training. Some underwriters, particularly those who insure rotorcraft, will require annual recurrent training of their customers. Failure to comply with this requirement can result in voiding of the insurance on the aircraft or denial of coverage in the event of a claim. Some underwriters limit this requirement to specific makes and models of aircraft or for operators of fleets of multiple types of aircraft. Irrespective of what the underwriter does or does not require, recurrent training makes sense. That is not to say that every pilot needs to go to factory school each year. It might be a ground refresher course with a few hours of in-aircraft training to follow. The goal is to nudge the pilot's memory and remind him/her of certain procedures which, hopefully, he or she has not had to use in the past year. It is also to get an independent and objective assessment of the pilot's skills including what he or she does well and what needs work.

Safe flying is all about being prepared. You would not plan a VFR flight into known IFR conditions or take off without a pre-flight check. Add an annual training regimen to your routine. Your insurance underwriter will appreciate it and so will your family and friends.

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GlobalAir.com

2010 Outlook for Aviation

by David Wyndham 1. January 2010 00:00
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Cautious, Optimistic, Hopeful are my words for 2010.

2009 was a lousy year for the global economy. Aviation was hard hit. There are a large number of fine folks who are out of work as a result of the economic recession. However, there appear to be glimmers of hope. Some of the leading economic indicators are pointing to a technical end of the recession in the US.

A low US dollar makes US- produced goods more attractive, and this means aircraft and components will be selling well outside of the US. The price of oil was somewhat stable, inflation has yet to rear its head, and there is stability of sorts in the financial markets. US Federal spending has provided an economic boost. Most economists are looking at a slow start to a recovery in 2010. When the jobless rate improves, then I'll believe them! By the way, overtime has been increasing in the US, a precursor to hiring. There is a lot of uncertainty.

The financial industry is headed back to stability and interest rates remain low. So does the chance of getting capital as only those with the lowest risk are finding financial institutions willing or able to work with them. Expect a very slow improvement in credit markets 2010.

Flight hours are showing signs of increasing. Charter demand is the leading indicator here. Those who got rid of their aircraft will start back with charter. Those who stopped chartering will start at low levels. Companies with aircraft will start flying as their business picks up. Expect this slow growth in flight hours to continue.

Regarding business aircraft values, the used aircraft market is showing some signs of life, especially for newer models and those in excellent condition. Prices have fallen 25% to 50% off of their highs. Prices are stabilizing and we are probably at the bottom in terms of residual values.

Fuel prices: I expect a slight increase in 2010. This is tough to call, as there may be some minor volatility in crude prices. As demand for oil increases, prices may increase as well, but only after a lag of a few months or more.

Keep an eye on inflation. While it is predicted at 2% for the US in 2010, there are inflationary pressures. Of course, interest rates are low and the Fed has room to maneuver should inflation pick up. Look for this to be an issue after 2010.

What about your flying for 2010? Will you be flying more in 2010 than in 2009? Click reply and let us know.



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