PILOT COUNSEL: Bad Form

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April 2024 editorial comment and update:  This article first appeared in the January 2018 AOPA PILOT magazine.  In it, John Yodice relates the pitfalls associated with filling out FAA forms, in this case, revocation due to a purportedly falsified medical application.  A more recent case, decided July 20, 2023, also involves a claim of falsification, but in this instance, a changed log book entry was the target of the FAA’s claim.

The case at hand involved a CFI who changed the flight time duration of a primary student’s solo cross-country entry.  The change was prompted by the CFI’s review of the student’s flight times prior to endorsing him for his private pilot checkride.  In totaling the student’s cross-country time, the CFI realized that he was .6 hours short of the five-hour requirement.  He subsequently used Wite Out correction tape to change a flight time entry from 1.7 hours to 2.3 hours.  On the day of the scheduled check-ride two days later, the DPE noticed the change and upon confirming with the flight school dispatch office that the flight was indeed 1.7 hours, he cancelled the checkride and reported the matter to the local Flight Standards District Office.  The FSDO opened an investigation and the CFI explained that at the time he made the change, he thought the student had flown the flight school Cherokee that had a no Hobbs meter; it only had a tachometer.  The normal conversion practice is to multiply the tach time by 1.3.  Assuming the student had forgotten to convert it, the CFI changed the entry to 2.3 after rounding up from 2.21.  The CFI was wrong.  The student had flown a different Cherokee which had a Hobbs meter and the original 1.7 entry was correct.  The CFI further explained that at the time he made the change he was convinced of the accuracy of the change.  He also remarked that the mistakes he made, including rounding up instead of down, were due to exhaustion from numerous long flights that week.  The investigation ultimately resulted in the FAA issuing an emergency order revoking the CFI’s commercial pilot and flight instructor certificates.  The CFI appealed the order to an NTSB law judge.

On appeal, after hearing testimonies from various witnesses and the CFI, the judge issued an oral initial decision siding with the FAA.  However, as to the propriety of the sanction, the judge did not make a finding.  Instead, the judge instructed the parties to submit briefs.  Then, four months later, the judge issued a new oral initial decision voiding the previous decision.  She noted that upon reading the briefs, the record did not support a revocation or a suspension, citing “several lingering questions” and lack of evidence that the CFI made an intentionally false change.  The law judge made certain credibility determinations about the CFI and other hearing witnesses and concluded that the CFI did not intentionally falsify the logbook.  Among the reasons for this conclusion, the judge cited the following: there was no urgency to make the change because there was plenty of time for the student to obtain the necessary solo cross county flight time before the checkride; had the CFI intended to falsify the log entry he would have been less conspicuous in his alteration; and, the CFI had nothing to gain by the falsification. 

Predictably, the judge’s decision didn’t sit well with the FAA and they appealed it to the National Transportation Safety Board, the “full board”.  On appeal, the FAA argued that the judge’s credibility determination was “arbitrary, capricious, and not based on evidence.”  The FAA also argued that the judge’s determination that the CFI did not make intentionally false statements was contrary to the Willful Disregard Doctrine (a standard cited in John Yodice’s article). 

As to credibility, the FAA maintained that the CFI’s “conflicting and ever-evolving” explanations for the change was not credible and that his final version of events was improbable.  The board disagreed and followed their long-standing practice of not disturbing a judge’s credibility determination, maintaining that “…law judges are best positioned to consider the witnesses’ demeanor and conduct during live testimony and evaluate their credibility because they see and hear witnesses.” And furthermore, the board stated “…the law judge’s credibility finding is well-reasoned and rooted in facts, we find no basis to overturn it.” 
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As to the application of the Willful Disregard Doctrine, the board did not find the case to be analogous to the FAA cases cited where applicants did not read the questions on the medical application form.  In the present case, the CFI did not argue that he failed to read the logbook entry.  He clearly read the entry and stated that he believed that the student had flown a different airplane which affected what he thought was a mis-recording of the flight time. The board thusly affirmed the judge’s finding that the CFI did not make an intentionally false statement by altering the flight time.  The result, no finding of a violation and no revocation.  This was a big win for the CFI and a rebuke of the FAA’s and their historically unyielding position on purported falsification matters. 

​Filling out forms, whether in writing or electronically, is a fact of life in this day and age.  And so it is with FAA forms.  What is particularly dangerous to pilots, flight instructors, mechanics, and others, is that filling out an FAA form incorrectly could lead to revocation of all their FAA certificates and ratings.  The legal precedents are strict, as this recent case demonstrates.
 
A pilot, with an otherwise unblemished career in aviation, lost his airline transport pilot certificate, flight instructor certificate, and mechanic certificate, for filling out his most recent medical application form incorrectly, as well as failing to report to the FAA his driver’s license suspension based on a reduced “wet reckless” conviction under California law.  He applied for this most recent first-class medical certificate—his thirty-sixth medical certificate application--using FAA’s MedXPress online system.
 
Many of us have experienced the length and complexity of the form.  He answered “no” to question 18v: “Have you ever in your life… Had any of the following?… Convictions and/or Administrative Action History of (1) any arrest(s) and/or 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 arrest(s) and/or conviction(s) and/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.”
 
In fact this pilot was arrested for driving under the influence (DUI), and his driver’s license was suspended.  However, his DUI charge was ultimately reduced, and he was convicted of the lesser charge of violating a California Code provision referred to as “wet reckless.”  He was required to, and did, enroll in and complete “DUI School.”
 
As a result of his response of “no” to question 18v, the FAA issued an order revoking all of his FAA certificates.  He appealed the revocation to the National Transportation Safety Board.  He explained that, when filling out medical applications, he “always takes the one from the previous time that he had filled out, and … [copies] it basically because the information is always the same.”  He stated emphatically that he did not intentionally falsify his answer to question 18v or defraud the FAA.
 
In upholding the revocation, how the NTSB treated his defenses is a warning to us all.  The crux of the case was whether he had knowledge that his answer to question 18v was false.  The Board cited to its precedents establishing a “willful disregard” standard under which the Board will infer that an airman had knowledge of the falsity of the fact when he or she admits that he or she did not read the questions on a medical certificate application.

​The Board cited to a Federal Court of Appeals decision to the effect: “Where an airman intentionally chooses not to carefully read the question for which he is providing an answer that he certifies by his signature to be true, a factfinder can infer ‘actual knowledge’ from a willful disregard for truth or falsity.”  So, the precedents go from not rereading the question and depending on former answers, to a finding of “willful disregard” for not rereading, to a finding that he had “knowledge” that his answer to question 18v was false,” to intentional falsification.  A tortuous route starting with a complex form and question.
 
The pilot also argued that the appropriate sanction should be suspension for a period of time, not a draconian revocation of all of his certificates.  The Board rejected his argument, holding that according to precedents, revocation is the appropriate sanction for intentional falsification cases.
 
The message to pilots is clear.  Read and understand the form completely, regardless of its length and complexity.  Resist the ease of using a previous form.  This problem is so prevalent that it was addressed in the 2012 Pilots Bill of Rights.  Among its many reforms, the Pilot’s Bill of Rights essentially directed the FAA to improve the medical application form to minimize misinterpretation and mistaken responses, and to avoid unnecessary allegations of intentionally falsified answers while providing an appropriate and fair evaluation of an individual’s qualifications.  We are still looking forward to an improved form.
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Copyright © Yodice Associates 2018.  All rights reserved.
                  
           
John Yodice is the Senior Partner of the Law Offices of Yodice Associates, a law firm experienced in aviation legal matters involving DOT, FAA and TSA certification and compliance, corporate governance, aircraft transactions and more. Kathy Yodice, John's daughter, is the managing partner of the firm.