In September 2020, FAA issued a notification of enforcement policy in the Federal Register, adopting a prompt settlement policy for legal enforcement actions against individuals alleged to have committed several types of violations related to medical certification covered in 14 CFR § 67.403(a)(1)-(4). These violations include making a “fraudulent or intentionally false statement on an application” or other paperwork related to medical certification, “reproducing a medical certificate for fraudulent purposes, or alteration of a medical certificate.”
Of the violations covered by the new policy, FAA investigations into fraudulent or intentionally false statements on an application for a medical certificate are by far the most common call to the Legal Services Plan. Often these investigations involve alcohol-related motor vehicle offenses or driver’s license suspensions, and their reportability on question 18(v) of the MedXPress application. If the investigation proceeds to enforcement, FAA will typically move to revoke all certificates held by the airman. While there is no waiting period to re-apply for a medical certificate after it is revoked, there is a 12-month period to reapply for a pilot certificate per 14 CFR § 61.13. Some other FAA certificates also have a reapplication period as detailed in the prompt settlement policy.
FAA contends that the new policy would allow eligible airmen to “apply for a new airman or ground instructor certificate sooner than in the absence of this policy.” It is true that considerable time can elapse between the initiation of such an investigation and the resulting enforcement action, so the time savings is likely accurate if the pilot who was the subject of the enforcement action chose not to appeal, or if the airman appealed and lost the case. However, this ignores the fact that such an appeal could be successful which could mean the airman may not need to re-apply for a new airman certificate at all.
Per the new policy, eligible individuals wishing to take advantage of the prompt settlement option after receiving a Letter of Investigation for a relevant violation "would have the opportunity to enter into a settlement agreement providing for...
(1) the acceptance of the prompt issuance of an order revoking the individual's airman or ground instructor certificates;
(2) the immediate surrender of the affected certificates in response to the order; and
(3) the waiver of appeal rights.”
The policy goes on to list numerous provisions that such a settlement agreement would typically contain.
NTSB precedent holds that an individual's subjective understanding of the question on the medical application “can be relevant to the offense of intentional falsification,” and one’s subjective understanding can only be demonstrated through the presentation of testimony or other evidence at an appeal hearing. The waiver of appeal rights associated with the prompt settlement policy would deprive an airman of the chance to raise any defenses to the allegations at a hearing, and the enforcement action agreed to through the prompt settlement policy would be on the airman’s record for life.
Any airman who receives a Letter of Investigation and is contemplating the prompt settlement policy should consult with an experienced aviation attorney before proceeding.
