A Case Study In Honesty

At least twice a year a commercial airman faces the potential of being grounded, sometimes for life.  The first obstacle comes in the form of recurrent training and the second comes in the form of a medical appointment.  When it comes to the medical, as an aviation attorney and ATP rated airman, my advice has always been that honesty is the best policy.  While I still believe that to this day, I would like to share a recent case study. 

This case is one that is repeated all over the country and involves a young student airman.  This airman worked hard to save the necessary funds to finally realize his dream of aviation.   Prior to beginning his training, the airman completed his MedXPress medical application (FAA Form 8500-8) and was granted a Third-Class airman Medical Certificate.

He immediately took to flying like, well, a duck to water, and in no time, he was ready to solo.  At about that time, he read an AOPA article that discussed the potential pitfalls of the MedXPress form. More specifically, the article discussed how an expunged conviction is still reportable to the FAA.  The airman immediately knew he made a mistake on his first ever MedXPress form.

Years earlier this airman was arrested and charged with a substance related offense. Rather than being convicted of the charge, the airman successfully completed a diversion program.  After finishing the program, the airman’s criminal attorney had the record expunged and sealed.  He was then told by his criminal attorney that he never needed to report the event ever again.  While that advice might be correct in the civilian world, it is improper in the aviation one.  In certain situations, the MedXPress form requires an airman to detail an arrest resulting in attendance at an educational or rehabilitation program, regardless of the legal outcome.

In consideration of the article, the airman made the decision to self-ground and suspend his training while he attempted to set the record straight.  By and through counsel, the airman submitted police records, court records, a personal statement, and a newly corrected medical application to his Regional Flight Surgeon.  The matter was quickly forwarded to the Civil Aerospace Medical Institute (CAMI) where a decision was ultimately made to involve FAA legal. 

Months after submitting his reconsideration packet, counsel for the airman was contacted by the Western-Pacific Regional legal office of the FAA.  The office requested a supplemental statement from the airman affirming the fact that he relied on advice of his criminal counsel when he omitted his arrest from his MedXPress. 

Why would such a statement be needed when the airman was the one who voluntarily reported the mistake to the FAA? 

According to FAA counsel, the statement was necessary to determine whether the airman should just have his Medical Certificate revoked, or whether he should have BOTH his Student Pilot’s Certificate and his Medical Certificate revoked.  The former is punishment for an incorrect statement on a medical application, and the latter is the punishment for an intentionally false statement.

The airman acquiesced and produced the supplemental statement.  As a result, the Western-Pacific Regional Counsel made the unfortunate decision to revoke the airman’s Medical Certificate.

I find this case study to be thought-provoking on several levels: the first level is regulatory, while the second is more philosophical.  From a regulatory standpoint, 14 CFR §67.403(c) clearly states: 

“The following may serve as a basis for suspending or or revoking a medical certificate; withdrawing an Authorization or SODA; or denying an application for a medical certificate or request for an authorization or SODA: (1) An incorrect statement, upon which the FAA relied, made in suppport of an application for a medical certifcate or request for an Authorization or SODA.”

           [Emphasis added]

Unfortunately, codified regulations mean little to FAA counsel.  Rather, they are seemingly beholden only to FAA Order 2150.3C, titled “FAA Compliance and Enforcement Program.”  Even then, the Order seems to suggest a certain level of subjectivity with respect to this issue. 

FAA Order 2150.3C states: “The Administrator is authorized to revoke an airman medical certificate when the holder of such a certificate: (A) does not meet the medical certification standards in 14 C.F.R. part 67; or (B) provides intentionally false or incorrect information in support of an application for airman medical certification.” The 2150.3C also “generally” calls for the revocation of only the medical certificate in response to an incorrect statement on a medical application.

In my experience, the subjectivity contemplated in both the codified regulations and the 2150.3C is religiously ignored by FAA counsel, most notably the Western-Pacific Regional Office.  This leads me to the philosophical concerns.

It feels as though pilots have been in an eternal feud with the FAA since the beginning of flight. The fires of this feud are stoked by a pilot’s belief that the FAA refuses to see us as human beings.  Pilots are expected to be perfect in all aspects of flight, with emphasis on the items that do not involve flight.  Above all, pilots are expected to be honest with the FAA.

FAA Order 2130.3C calls for deferred punitive suspensions when legal enforcement is appropriate, but the FAA wants to encourage the certificate holder to take corrective action.

In this case study, a student pilot self-grounded and self-reported a justifiable mistake on the first 8500-8 he ever executed.  If it weren’t for his honesty, the FAA would have likely never known about the inaccuracy.  If there was ever a time where a deferred punishment would have been warranted, this would have been it.  Yet, in this case, FAA counsel decided to issue a revocation of the airman’s Medical Certificate. 

When asked to justify the decision, FAA counsel asserted the position that a revocation was “required” and, as if to add some level of solace, the attorney made it known that the airman could apply for a new medical the following day. Little, if any, care was given to the fact that a student pilot would be forced to continue his career with a ‘Scarlet A’ on his record, from his very first medical application.

Truth be told, I have never seen FAA Counsel exercise a deferred sentence.   Nor have I seen them exercise the subjectivity contemplated in the codified regulations.  FAA’s Compliance Program, which generally calls for nonpunitive resolution of inadvertent violations, is seemingly ignored for cases arising out of the Aerospace Medical Certification Division. Perhaps, the FAA is insensitive, or perhaps they are just ignorant to the realities of this industry.  Whatever the cause may be, case studies like this one need to be highlighted, not for the benefit of pilots, but for the benefit of the FAA. 

I hope the FAA realizes that for every one pilot who tries to do the right thing, there are thousands more who remain in the shadows. Those pilots will remain in the shadows until the FAA demonstrates appropriate discretion.  In this case, the pilot was of no harm to himself or the public, but the FAA would be foolish to think there aren’t pilots in the shadows who are too scared to tell the truth, or worse, too scared to get treatment. 

For the pilots that read this article, I hope this is not a deterrent to do the right thing. For the FAA, I hope this turns the lights on.

*The opinions expressed in this article are those of the author.  Every situation is different, and you should consult with an experienced attorney before deciding any course of action.*