The long arm of the law
Cross-over aviation activity could jeopardize your livelihood
Perhaps I’m easily impressed, but when I learn that a mechanic is also a pilot, I’m impressed. I am similarly impressed with a pilot who is a mechanic. I guess I appreciate the effort it takes to achieve each certification and I recognize the utility of having both. Be advised, however, there are circumstances where regulatory non-compliance in one arena can affect certification in the other.
Mechanics and pilots alike are subject to regulations that prohibit the making of any fraudulent or intentionally false statement on any application for a certificate or rating. The specific language of each regulation, 14 CFR 65.20, 14 CFR 61.59 and 14 CFR 67.403 differ somewhat to fit the duties and practices of the associated certificate. Notably, however, they all contain language that essentially says the commission of a prohibited act (fraudulent or intentionally false statement or entry) is a basis for suspending or revoking any airman certificate or rating held by that person. In other words, an airman deemed to have committed intentional falsification can result in suspension or revocation of all airman certificates, not just the one being exercised in connection with the falsification. Yes, that means if you’re an AMT-mechanic with a pilot certificate and your pilot certificate or medical certificate is targeted for falsification-related enforcement, then your A&P certificate is also very much at risk.
A 2019 case involving a Delta Airlines A&P mechanic, who was also a pilot, is instructive and on-point with this article. Prior to becoming a certificated mechanic and then a pilot, this individual had been stopped by law enforcement for driving recklessly in a parking lot. Evidently, he smelled of alcohol and was given a breathalyzer, the results of which was a blood alcohol content twice the legal limit. He was arrested for driving under the influence. He ultimately obtained a pretrial diversion—a program offered for first time offenders who agree to comply with certain conditions. In this case, the individual had to attend “DUI School” and perform community service. He was not convicted.
Fast forward a few years and this mechanic applied for a pilot medical certificate. The application asks numerous questions including a yes or no question to a history of any convictions involving driving while intoxicated. He truthfully and accurately answered “no”. Some years later, this mechanic-pilot again applied for a medical certificate. However, the language of the question had since been changed to include the term “arrest(s)”. In other words, the question now read history of any arrest(s) and/or convictions involving driving while intoxicated. The mechanic-pilot answered “no” and which led to the FAA issuing an emergency order revoking his private pilot, mechanic (A&P), and airmen medical certificates due to his alleged fraudulent or intentionally false answer—yes, the FAA was able to determine that he had indeed been arrested for DUI. And, here’s where it got really real for the working mechanic. An emergency revocation requires immediate action, i.e. immediate surrender of certificates and, in this case, pending the outcome of his petition challenging the FAA’s emergency determination. Such a petition is a type of preliminary appeal, giving airmen the opportunity to argue why they should keep their certificates during the adjudication process. Most mechanics I know cannot work without holding valid certification. Thankfully, the NTSB law judge found that the mechanic-pilot could keep his A&P certificate, but not his pilot and medical certificates, while they proceeded with the case. It was a short-lived victory, as you will see.
At the appeal hearing, the mechanic-pilot argued that he didn’t read the question and therefore, his wrong answer was merely an inadvertent mistake and not intentional falsification. The administrative law judge didn’t buy it. He maintained that a DUI event was such a dramatic incident that he didn’t find it credible that the mechanic-pilot wouldn’t read the question and the judge cited precedent requiring applicants to read applications carefully. Furthermore, the judge found that the FAA proved three prongs of the test required in intentional falsification cases: (1) the airman made a false representation, (2) in reference to a material fact, and (3) with knowledge of the falsity of the fact. The judge sustained the FAA’s Order of revocation, which included all three certificates. The mechanic-pilot wasn’t done. As was his right, he appealed that decision to the full NTSB, the “Board” as it’s often called. On appeals to the Board, cases are not re-litigated. Rather, the burden shifts from the FAA to the appealer, who must prove that the administrative law judge’s credibility determination, in this case, was arbitrary and capricious. The Board found that the record contained sufficient evidence to support the law judge’s credibility determination that the mechanic-pilot’s “no” answer to the medical application question about DUI arrests and convictions was false because he was trying to conceal the event. And, as to sanction, revocation was deemed an appropriate sanction.
For you sharp-eyed observers who note that CFR’s 65.20, 61.59 and 67.403 partially quoted above, refer to certificate suspension as an option and wonder why revocation is the norm, good question. We’ve attempted to influence a change for many years and our efforts are ongoing. The FAA and by extension, NTSB (law judges and the Board), take the position that intentional falsification, if proven, portrays a lack the qualification in terms of care, judgment and responsibility to hold any FAA airman certificate, no exceptions. We think there should be some leniency, suspension instead of revocation, in cases where there’s a reasonable explanation for a mistake or misunderstanding.
The bottom line is that this mechanic’s livelihood was severely impacted by his answer to a question on the FAA medical certificate application. Whether you think he was appropriately cited and sanctioned or not, you are warned to take extreme care when completing aviation-related paperwork, including applications and log entries.
Kathy Yodice is the Managing Partner of Yodice Associates, a private practice law firm with a special emphasis on aviation law. She has more than 30 years experience representing airman in FAA enforcement actions, regulatory compliance matters, accident investigations, and aviation-related business issues.
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