Greg Reigel's Aero Legal Services

Failure To Disclose A Conviction On An Airman Medical Application Will Result In Revocation

By Gregory J. Reigel

© November, 2008 All rights reserved.

Consistent with precedent, the National Transportation Safety Board recently affirmed an Administrative Law Judge's ("ALJ") grant of summary judgment to the FAA on an order revoking all of an airman's certificates for violation of FAR 67.403(a)(1) (prohibition against making fraudulent or intentionally false statements on an application for a medical certificate). In Administrator v. Martinez, the airman checked the "no" box for question 18w on the application for medical certificate, certifying that he had "no history of nontraffic conviction(s) (misdemeanors or felonies)." However, less than 8 months earlier the airman had been convicted of disorderly conduct, a misdemeanor.

When the FAA discovered the discrepancy, it issued an emergency order revoking the airman's commercial pilot, ground instructor, flight instructor, and medical certificates, as well as any other airman certificates held by the airman. The airman appealed the revocation and, upon motion by the FAA, the ALJ entered judgment against the airman and affirmed the FAA's revocation order. The airman then appealed the ALJ's decision to the full Board.

On appeal, the Board initially reviewed the law applicable to an intentional falsification case: The FAA must prove that an airman (1) made a false representation, (2) in reference to a material fact, (3) with knowledge of the falsity of the fact. Applying the law to the case, the Board determined that the airman's answer to question 18w was false and material and the airman knew his answer was false.

With respect to the airman's defenses that he lacked intent to falsify and that he misunderstood the questions, the Board observed that failure to consider question 18w on a medical application carefully before providing an answer does not establish a lack of intent to provide false information. It further noted that lack of intent to provide false information is not proved by an airman's disclosure of the conviction to his employer. Similarly, the Board found that the two questions about traffic (18v) and other convictions (18w) are not confusing to a person of ordinary intelligence. It then concluded that the sanction of revocation was appropriate and consistent with Board precedent in falsification cases.

This case is neither unusual nor unexpected. The FAA takes a dim view of falsification cases and the NTSB supports this position. You may wonder "what does a disorderly conduct misdemeanor have to do with medical qualification or flying an airplane?" Well, it doesn't necessarily. However, as far as the FAA is concerned, the conviction is something of which the FAA believes it should be made aware.

Maybe the incident upon which the conviction was based involved drugs or alcohol but through a plea deal resulted in a conviction for an offense that would not otherwise be reportable to the FAA or disqualifying under FAR 61.15 (Offenses involving drugs and alcohol). And even if the conviction was unrelated to drugs or alcohol, the fact that an applicant was convicted is something that the FAA takes into consideration when issuing a medical certificate.

Additionally, although the sanction may appear extreme, after all the falsification was on an application for a medical certificate and did not relate to any other airman certificate, the FAA considers falsification evidence that an airman lacks the qualification to hold any airman certificate, medical or otherwise. Thus, an omission or a false statement on a medical application, or any other application for that matter, will jeopardize all of an airman's certificates.

The result is unfortunate for the airman in this case for a couple of reasons. First, disclosure of a disorderly conduct misdemeanor is, by itself, typically not disqualifying. Absent any other circumstances (e.g. involvement of alcohol or drugs, history of convictions etc.), if the airman had disclosed the conviction he probably would have still been issued a medical certificate. Second, the airman is now back to square one. If he wants to continue to fly, he will need to re-take written examinations and check rides etc. In the meantime, he will have to earn a living doing something other than flying airplanes or teaching people how to fly airplanes.

This case is a good example of why accurate disclosure on an application for medical certificate is necessary and, indeed, in the majority of situations is preferable to the consequences that can result from falsification. If you have questions about what you are obligated to disclose in response to Question 18 and its subparts on an application for medical certificate, consult with an aviation attorney before you go in for your examination. An aviation attorney will be able to tell you whether you need to disclose something and what, if any, impact that disclosure may have on your application. It may not be as bad as you think.