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FAA Application Omission Penalty Not Arbitrary or Capricious

By Robyn Hagan Cain on November 16, 2011 | Last updated on March 21, 2019

Remember the character and fitness report? We took that questionnaire pretty seriously. That's because our law school mandated attendance at a second-year lecture at which a state bar representative told us that he could find anything that we thought we could hide.

Over-disclosure, he said, was safer than under-disclosure. And oh, did we over-disclose!

Lawyers, of course, aren't the only professionals who have to disclose every nitty-gritty detail to the background check overlords, so today we're looking at a case involving pilot background checks.

Much like the scary bar rep from our law school days, the Federal Aviation Administration (FAA), is a formidable foe to background check oversights. Case in point: Pilot Kenneth Cooper just lost his appeal of an emergency FAA action revoking his airman and medical certificates - which are required to operate an aircraft - in the D.C. Circuit Court of Appeals.

The revocation was based on the conclusion that Cooper made an intentionally false statement on his medical certificate application when he didn't disclose an arrest for an alcohol-related motor vehicle incident. Cooper argued that the FAA Administrator failed to prove intent to falsify his answer on the application.

Two days after the "alcohol-related incident" resulted in the suspension of Cooper's driver's license in 2008, Cooper wrote the FAA to disclose the infraction. When, almost two years later, Cooper completed a new second class medical certificate application, he responded "no" to the question asking about arrests and/or convictions for alcohol-related traffic offenses. After initially issuing the certificate, the FAA contacted Cooper to notify him that there was evidence that he had intentionally provided false information.

Cooper tried to argue that it was an oversight, but the FAA would not budge.

The National Transportation Safety Board (NTSB) ruled that Cooper's admitted failure to read the question before answering it constituted willful disregard for truth or falsity, thus he intentionally made a false statement in his application. The D.C. Circuit Court of Appeals found that the willful disregard standard that the FAA applied to Cooper's proceeding was a reasonable interpretation of the regulation, and the NTSB's deference to the FAA's interpretation of its regulation was not arbitrary or capricious, an abuse of discretion, or contrary to law.

If you're representing a client is a similar under-disclosure or omission appeal before a federal agency, be prepared for bad news. D.C. Circuit Court of Appeals judges are, no doubt, still haunted by the memories of their own character and fitness applications, and will not sympathize with appellants seeking relief for failure to read a question.

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