United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 6, 2009 Decided December 8, 2009
No. 08-1390
JACK RONDAL DILLMON,
PETITIONER
v.
NATIONAL TRANSPORTATION SAFETY BOARD, ET AL.,
RESPONDENTS
On Petition for Review of an Order
of the National Transportation Safety Board
Weldon E. Patterson argued the cause and filed the brief
for petitioner.
Agnes M. Rodriguez, Senior Attorney, Federal Aviation
Administration, argued the cause and filed the brief for
respondent.
Before: GARLAND, BROWN and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: Petitioner Jack Rondal Dillmon
accuses the National Transportation Safety Board (Board) of
hypocrisy—saying one thing while doing another. Dillmon
2
argues the Board departed from its prior decisions without
adequate explanation when it affirmed the Federal Aviation
Administration’s (FAA’s) emergency revocation of his
airman and medical certificates. We agree with Dillmon: the
Board has failed to exhibit the reasoned decision making we
require of agencies. We therefore grant his petition for
review.
I
On February 26, 1997, a jury convicted Dillmon of ten
counts of bribery of a public servant, a felony in the state
where he was prosecuted. A month later, on March 28, 1997,
Dillmon submitted to the FAA an application for a Third
Class Medical Certificate. In filling out the medical
application, Dillmon had to answer “Yes” or “No” to
Question 18w, which asked whether he had any “[h]istory of
nontraffic conviction(s) (misdemeanors or felonies).” FAA
Form 8500-8 (7-92). Despite his recent felony bribery
conviction, Dillmon answered “No.” In signing the form,
Dillmon certified his answers were “complete and true to the
best of [his] knowledge.” Id. On May 2, 2007 and March 17,
2008, Dillmon again filled out the application to renew his
medical certificate. Each time he filled out the application, he
answered Question 18w “No.”
In August 2008, the FAA Acting Administrator issued an
emergency order revoking Dillmon’s medical certificate, as
well as his private pilot certificate. The order explained the
Administrator had concluded Dillmon’s answers to Question
18w in 1997, 2007 and 2008 violated Federal Aviation
Regulation (FAR) provision 14 C.F.R. § 67.403(a)(1), which
states: “No person may make or cause to be made . . . [a]
fraudulent or intentionally false statement on any application
for a medical certificate.” Dillmon appealed the order to the
3
Board and requested a hearing to challenge the FAA’s
findings.
At an October 2, 2008 hearing before an administrative
law judge (ALJ), the FAA submitted evidence of Dillmon’s
bribery conviction and his “No” answers to Question 18w on
his 1997, 2007 and 2008 medical applications. After the
FAA’s presentation of evidence, the ALJ denied Dillmon’s
motion to dismiss and ruled the FAA had made out a prima
facie case for the regulatory offense of intentional falsification
under FAR section 67.403(a)(1). The ALJ then allowed
Dillmon to present evidence and testify in his defense.
Dillmon explained why he had answered “No” to
Question 18w. He said, “I have always believed and have
always understood . . . any time this question has ever come
up was that all [the FAA was] interested in was anything to do
with drugs or alcohol.” Hearing Tr. at 56–57 (Oct. 2, 2008).
Dillmon described how the FAA’s Aviation Medical
Examiner (AME) had first informed him of this in 1990. Id.
at 57, 76–77. He testified another AME, Dr. Van Den Berg,
similarly advised him in 2007 and 2008 that Question 18w
was only concerned with drug- or alcohol-related offenses.
Id. at 66, 85–86. Dillmon submitted two letters from Dr. Van
Den Berg to corroborate his testimony about their
conversations in 2007 and 2008. Dillmon emphasized, “I
never would have checked no if this was not the advice I was
given by the designated examiner that helped me complete the
form.” Id. at 66. Finally, he testified he was “painfully aware
[his] life [was] an open book when it comes to a criminal
conviction,” and he was “not proud of it,” but it was “not
something [he] would lie about or try to hide.” Id. at 66–67.
On cross-examination by the FAA, Dillmon conceded he
had never read the portion of the medical application which
4
provided instructions for completing Question 18w until the
day before the hearing. Hearing Tr. at 79. The instructions
stated, “Letter (w) . . . asks if you have ever had any other
(nontraffic) convictions (e.g., assault, battery, public
intoxication, robbery, etc.). If so, name the charge for which
you were convicted and the date of conviction in the
EXPLANATIONS box.” FAA Form 8500-8 (3-99). He also
admitted that when he filled out the applications in 1997,
2007 and 2008, he “knew [he] had been convicted of a non-
traffic offense.” Id. at 86–87. Finally, when asked by the
ALJ how he would answer Question 18w “today,” Dillmon
said, “Absolutely yes.” Id. at 88.
After the hearing, the ALJ issued his decision. He noted
the central question was, “What is in the man’s mind?”
Hearing Tr. at 130. Of particular importance to the instant
petition, the ALJ found Dillmon to be a credible witness: “My
determination is that [Dillmon] was quite forthright and
candid in his testimony. To me, there is quite a notable
absence of any indication of an intentional falsehood . . .
when he signed the no to these questions in the three
applications in question 18W.” Id. at 132. In light of
Dillmon’s testimony and the documentary evidence he
submitted, the ALJ ruled Dillmon had successfully rebutted
the Administrator’s prima facie case of intentional
falsification, concluding, “[I]t is clear to me that there’s no
intention on the part of [Dillmon] to falsify, let alone be
fraudulent in setting forth the answers that he did to this
question, 18W.” Id. at 133. The ALJ therefore reversed the
FAA’s emergency revocation order.
The FAA appealed the ALJ’s decision to the Board,
which reversed the ALJ based on two purported errors.
Administrator v. Dillmon, NTSB Order No. EA-5413, 2008
WL 4771937, at *4 (Oct. 28, 2008). First, the Board
5
concluded the ALJ erred in determining Dillmon had
successfully rebutted the Administrator’s prima facie case of
intentional falsification. Id. Relying on several prior
decisions, the Board rejected Dillmon’s argument that he did
not make an intentionally false statement because he believed
Question 18w was only concerned with alcohol and drug
convictions. Second, the Board determined the ALJ erred by
requiring the Administrator to prove Dillmon had the specific
intent to deceive the FAA, rather than the lesser burden of
proving intent to falsify. Id. The Board therefore reversed
the ALJ and affirmed the FAA’s emergency revocation order.
Dillmon petitioned this court to review the Board’s decision.
II
We are bound by the Administrative Procedure Act when
we review the Board’s decisions. See Chritton v. NTSB, 888
F.2d 854, 856 (D.C. Cir. 1989). Under 5 U.S.C. § 706(2)(E)
and 49 U.S.C. § 44709(f), we adopt the agency’s factual
findings as conclusive if supported by substantial evidence.
The agency’s factual findings “may be supported by
substantial evidence even though a plausible alternative
interpretation of the evidence would support a contrary view.”
Chritton, 888 F.2d at 856. We also must consider whether the
agency action is “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A). In evaluating agency action under this standard,
we “defer to the wisdom of the agency, provided its decision
is reasoned and rational, and even ‘uphold a decision of less
than ideal clarity if the agency’s path may reasonably be
discerned.’” Chritton, 888 F.2d at 856 (quoting Bowman
Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S.
281, 286 (1974)).
6
Nevertheless, we have held that where an agency departs
from its precedent, it must do so by “reasoned analysis.”
Ramaprakash v. FAA, 346 F.3d 1121, 1124–25 (D.C. Cir.
2003); see Motor Vehicle Mfg. Ass’n of United States, Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57 (1983) (“[A]n
agency changing its course must supply a reasoned
analysis.”). As the Supreme Court recently explained, the
APA does not impose a heightened standard of review upon
an agency to justify its departure from precedent. FCC v. Fox
Television Stations, Inc., 129 S. Ct. 1800, 1810–11 (2009).
To the contrary, an agency “is free to alter its past rulings and
practices even in an adjudicatory setting.” Airmark Corp. v.
FAA, 758 F.2d 685, 691–92 (D.C. Cir. 1985). But we do
require the agency to “display awareness that it is changing
position” and not to “depart from a prior policy sub silentio or
simply disregard rules that are still on the books.” Fox
Television, 129 S. Ct. at 1811. This permits us to ensure the
agency’s “prior policies and standards are being deliberately
changed, not casually ignored.” Ramaprakash, 346 F.3d at
1125. Reasoned decision making, therefore, necessarily
requires the agency to acknowledge and provide an adequate
explanation for its departure from established precedent. See
Fox Television, 129 S. Ct. at 1811 (“[T]he agency must show
that there are good reasons for the new policy.”). Applying
the corollary of this requirement, “agency action is arbitrary
and capricious if it departs from agency precedent without
explanation.” Ramaprakash, 346 F.3d at 1124.
Dillmon argues the Board’s decision diverges from its
precedent in two ways: first, by reversing the ALJ’s decision
without addressing his credibility determination; and second,
by applying an improper standard for the intent element of the
offense of intentional falsification. We address these
arguments in turn.
7
A
Dillmon argues the Board departed from its precedent
when it reversed the ALJ without addressing his credibility
determination in Dillmon’s favor. The Board’s precedent
unambiguously requires it to defer to its ALJs’ credibility
determinations. As we have observed, “the Board’s policy is
not to disturb a credibility finding unless there is a compelling
reason or the finding was clearly erroneous.” Chirino v.
NTSB, 849 F.2d 1525, 1529–30 (D.C. Cir. 1988) (internal
quotations omitted) (affirming Board’s reversal of ALJ’s
credibility finding in airman certificate revocation
proceeding). Consequently, the Board “has overturned ALJ
credibility determinations found to be inherently incredible or
inconsistent with the overwhelming weight of the evidence.”
Id. at 1530 n.6.
This deferential standard of review stems from the
function the ALJs perform in the adjudicative process: “As
we have stated repeatedly, . . . the law judge sees and hears
the witnesses, and he is in the best position to evaluate their
credibility.” Daschle v. Taylor, NTSB Order No. EA-4509,
1996 WL 738720, at *3 (Dec. 11, 1996); see also
Administrator v. Exousia, Inc., NTSB Order No. EA-5319,
2007 WL 2825091, at *2 (Sept. 21, 2007) (“[O]ur prior
decisions make clear that we defer to the credibility
determinations of our law judges, who are in the position of
observing live testimony and the demeanor of witnesses,
unless shown to be clearly erroneous.”). Of relevance to
Dillmon’s petition, the Board has directed its ALJs to assume
this role in revocation proceedings for intentional falsification
of medical applications: “[W]e think that . . . the task facing
our law judges is essentially no different from any other
adjudication in which a credibility assessment concerning an
individual’s intent must be made.” Administrator v.
8
Barghelame, 7 N.T.S.B. 1276, 1276, 1991 WL 321289 (Nov.
5, 1991).
The Board’s adherence to this precedent has been
unwavering. For instance, in Administrator v. Roarty, NTSB
Order No. EA-5261, 2006 WL 3472333 (Nov. 21, 2006), the
Board reviewed an ALJ’s determination that an airman had
not intentionally falsified his medical application in violation
of FAR section 67.403(a)(1). The ALJ had concluded the
airman’s failure to disclose a prior revocation of his medical
certificate when filling out the application was a negligent
mistake, rather than an intentionally false answer. Id. at *2.
On appeal, the Board noted, “[R]esolution of credibility
issues, unless made in an arbitrary or capricious manner, is
within the exclusive province of the law judge.” Id. The
Board declared it “may not reverse the law judge simply
because, on the appellate record, we might come to a different
conclusion.” Id. (citing Chirino, 849 F.2d at 1530). Although
the Board reviewed the evidence from the hearing and
speculated the airman might have intentionally falsified the
answer, it was “constrained” to uphold the ALJ’s decision
because it had “no basis to characterize the law judge’s
credibility determination in favor of respondent [as] arbitrary
or capricious.” Id.
Turning to Dillmon’s petition, we are unable to reconcile
the Board’s decision with its precedent concerning its review
of an ALJ’s credibility determination. There is no question
the ALJ made an explicit credibility finding in Dillmon’s
favor. See Hearing Tr. at 132 (“My determination is that
[Dillmon] was quite forthright and candid in his testimony.”).
Dillmon’s credibility was a central issue at the hearing. In
concluding Dillmon had rebutted the FAA’s prima facie case,
the ALJ relied heavily on Dillmon’s testimony about what he
thought Question 18w meant and about his conversations with
9
the AME Dr. Van Den Berg in 2007 and 2008. But when it
reversed the ALJ, the Board did not even acknowledge he had
made a credibility finding.
The Board’s silence on this pivotal factual issue leaves us
unable to determine whether it acted consistent with its
precedent. See, e.g., Exousia, NTSB Order No. EA-5319, at
*2; Chirino, 849 F.2d at 1529–30. Its silence is particularly
troubling here because, as in Roarty, the ALJ who presided
over Dillmon’s hearing believed his testimony. Cf. Roarty,
NTSB Order No. EA-5261, at *2. In Roarty, the Board
expressed skepticism about the airman’s defense but admitted
it was “constrained” by precedent to affirm the ALJ’s
decision. Id. The facts in Roarty appear indistinguishable
from the circumstances in Dillmon’s case, and the Board has
not offered an explanation for these conflicting results. If a
compelling reason for refusing to believe Dillmon and
rejecting the ALJ’s credibility assessment exists, the Board
has not revealed it to us. Because the Board departs from its
precedent without adequate explanation, its decision reversing
the ALJ without overturning his credibility determination is
arbitrary and capricious. See Ramaprakash, 346 F.3d at
1124–25; see also Andrzejewski v. FAA, 563 F.3d 796, 800
(9th Cir. 2009) (holding the Board’s “failure to give the ALJ’s
implicit credibility determination the requisite level of
deference was contrary to [the Board’s] precedent and,
therefore, arbitrary and capricious”).
The FAA essentially concedes the Board deviated from
its precedent when it argues, “To the extent in so reversing the
ALJ, the Board implicitly overturned any of his credibility
determinations, the substantial evidence in the record
establishes that the [Board] had the requisite basis to do so
under the foregoing standard.” FAA Br. at 50 (emphasis
added). The FAA thus admits the Board failed to explicitly
10
overturn the ALJ’s credibility determination but asserts we
should nevertheless interpret its decision to encompass this
result. The FAA’s overturning-by-implication argument is
itself inconsistent with the Board’s precedent. Moreover, if
the Board were permitted to overturn the ALJ’s credibility
finding implicitly, we still would be unable to ascertain
whether the Board reviewed the finding under the appropriate
standard or simply ignored it. See Fox Television, 129 S. Ct.
at 1811 (an agency must “display awareness that it is
changing position” and not “depart from a prior policy sub
silentio or simply disregard rules that are still on the books”).
If we accepted the FAA’s argument, we would have to
assume the Board had engaged in reasoned decision making
without confirming it actually did. This extreme level of
deference is not sanctioned by the APA nor our precedent.
The FAA offers two reasons why we should not vacate
the Board’s order. First, the FAA argues the standard of
review we should apply to the Board’s decision is found in
Singer v. Garvey, 208 F.3d 555 (6th Cir. 2000). There the
court noted, “Where the [Board] reverses its ALJ, this court’s
role is limited to determining whether those factors which
influenced the ALJ should have required the [Board] to reach
a decision different from the one it did.” Id. at 558. It is
unclear to us precisely what Singer meant by this statement,
but whatever it meant, the FAA appears to have taken it out of
context. Our role is not “limited” in the manner suggested by
this single sentence; we review the Board’s decisions under
the standards established by the APA, not according to the
factors relied on by the ALJ. Singer acknowledges the proper
standard of review in the paragraph prior to the one from
which the FAA quotes. See id. (“This court may set aside
agency action only if it finds it to be arbitrary, capricious, an
abuse of discretion, or, where there has been a hearing, the
agency action is unsupported by substantial evidence.”).
11
In any event, Singer, while not controlling, is consistent
with our holding today. The airman in Singer had argued the
Board departed from precedent by overturning a statement by
the ALJ that the airman contended was a credibility finding.
Id. The court rejected this argument by noting the Board had
“specifically addressed the ALJ’s statement . . . and
concluded that it did not amount to a credibility finding.” Id.
The court concluded the Board’s action was consistent with
its precedent because it had properly interpreted the ALJ’s
statement as a legal conclusion rather than a factual finding
based upon the witness’s reliability. Id. at 559 (“The ALJ did
not render a credibility determination.”). As noted above, the
ALJ’s statement about Dillmon’s testimony clearly
constituted a credibility determination. Singer therefore does
not resolve the question raised by Dillmon’s petition, and the
FAA’s reliance on it is misplaced.
Second, the FAA argues the substantial evidence in the
record provided the Board with the requisite basis for
overturning the ALJ’s credibility determination, and, because
the Board’s decision is supported by substantial evidence, it
therefore should be affirmed. The flaw in the FAA’s
argument is that the Board does not cite this same basis for
reversing the ALJ. Instead, the Board reversed the ALJ
purportedly because he erred by departing from the Board’s
precedent in two respects—an explanation we will explore
below. However, even if the ALJ had arbitrarily and
capriciously departed from the Board’s precedent, this would
not, by itself, vitiate his factual findings, including the
credibility determination. The FAA’s substantial evidence
argument is thus a thinly-veiled attempt to rehabilitate the
Board’s decision by suggesting it reached the right
destination, even though it chose the wrong path to get there.
Although we will “uphold a decision of less than ideal
12
clarity,” we do this only “if the agency’s path may reasonably
be discerned,” Chritton, 888 F.2d at 856 (quoting Bowman
Transp., 419 U.S. at 286). The path the Board has taken is
not the one now proposed by the FAA. We “may not accept
appellate counsel’s post hoc rationalizations for agency
action.” State Farm, 463 U.S. at 50. We therefore conclude
the Board’s failure to address the ALJ’s credibility
determination was arbitrary and capricious.
B
Dillmon’s second argument is that the Board departed
from its precedent by applying an improper standard for the
intent element of the offense of intentional falsification. The
FAA revoked Dillmon’s certificates pursuant to FAR section
67.403(a)(1), which prohibits an airman from making an
“intentionally false statement.” This provision is similar to
another FAA regulation reviewed by the Ninth Circuit in Hart
v. McLucas, 535 F.2d 516 (9th Cir. 1976). There the Board
affirmed the suspension of an airman’s flight instructor
certificate for making false entries in his logbook in violation
of FAR section 61.59(a)(2). Id. at 517–18. The ALJ
concluded Hart had not acted fraudulently but had made
intentionally false statements. Id. at 518. The Board affirmed
the ALJ, noting it considered a statement to be intentionally
false “if the entry is factually incorrect . . . and if the maker of
the incorrect statement intends to make that statement.” Id.
On appeal, the Ninth Circuit disagreed, explaining the
regulation identified two partially overlapping offenses—one
for fraud and the other for intentional falsification. The fraud
offense required proof of five elements: “(1) a false
representation (2) in reference to a material fact (3) made with
knowledge of its falsity (4) and with the intent to deceive (5)
with action taken in reliance upon the representation.” Id. at
13
519 (quoting Pence v. United States, 316 U.S. 332, 338
(1942)). The court distinguished the offense of intentional
falsification as “a lesser included offense” consisting of the
first three elements of fraud: “falsity, materiality and
knowledge.” Id. Rejecting the Board’s position, the court
concluded the regulation included a scienter requirement that
“must be construed to require actual knowledge of falsity.”
Id. at 520. Thus, for the FAA to prove the offense of
intentional falsification, “the person making the false entry
must know of such falsity.” Id. at 519. Subsequently, the
Board and the FAA have adopted and extended Hart’s three-
prong standard to apply to the offense of intentional
falsification under FAR section 67.403(a)(1), the regulation at
issue in Dillmon’s petition. See Roarty, NTSB Order No.
EA-5261, at *2 (“The test to be applied to determine whether
a statement is intentionally false is found in Hart . . . , which
states that the elements of intentional falsification are: 1) a
false representation; 2) in reference to a material fact; and 3)
made with knowledge of its falsity.”); FAA Br. at 25 (noting
the FAA’s agreement that intentional falsification is proven
via Hart’s three-prong standard).
In his brief, Dillmon does not assert the Board
completely ignored the intent element. Indeed, the Board
acknowledged Hart’s three-prong standard in its decision
affirming the FAA’s revocation of his airman and medical
certificates. See Dillmon, NTSB Order No. EA-5413, at *3.
Instead, Dillmon contends the Board departed from its
precedent by allowing the FAA to prove his intent by
satisfying the lesser burden of showing negligence (he should
have known his answer was false) rather than knowledge (he
knew his answer was false). See Petitioner’s Br. at 18.
Despite the ALJ’s finding to the contrary, the Board
concluded Dillmon had the requisite knowledge to satisfy the
14
intent element of FAR section 67.403(a)(1): “Overall,
[Dillmon] clearly knew that he had been convicted of a non-
traffic offense.” Dillmon, NTSB Order No. EA-5413, at *3.
The Board reached this conclusion primarily relying on
Dillmon’s statement during his hearing testimony that, when
he filled out the medical applications, he “knew he had been
convicted of a non-traffic offense.” Id. at *2. But there is a
step missing in the Board’s reasoning. Dillmon’s statement
establishes he was aware when he answered Question 18w
that he had been convicted of felony bribery. Standing alone,
however, this does not establish he knew his answer to
Question 18w was false. Although Dillmon freely admitted
he knew about the conviction, he also testified he understood
Question 18w only required him to report drug- and alcohol-
related convictions. Hearing Tr. at 56–57 (“I have always
believed and have always understood . . . any time this
question has ever come up was that all [the FAA was]
interested in was anything to do with drugs or alcohol.”).
Dillmon’s testimony, as credited by the ALJ, was that he did
not know his answers were false because of his mistaken
interpretation of Question 18w. The question for this court
then is whether Dillmon’s subjective understanding of the
questions in the medical application is relevant to the offense
of intentional falsification. The Board’s precedent establishes
it is, and that is the FAA’s position as well. See Oral Arg.
Recording at 13:40–14:06.
The Board previously has stated it considers the airman’s
subjective interpretation of the meaning of a question to be
relevant: “The law judge correctly noted that the third
requirement of an intentional falsification charge is that the
statements must have been made ‘with knowledge of their
falsity.’ Therefore, his finding on this element necessarily
hinged on respondent’s understanding of what information the
question was intended to elicit.” Administrator v. Reynolds,
15
NTSB Order No. EA-5135, 2005 WL 196535, at *4 (Jan. 24,
2005). Reynolds appears to require the FAA to prove the
airman subjectively understood what the question meant. Id.
Having announced this interpretation of the intent element in
Reynolds, the Board was obligated to apply it consistently.
See Ramaprakash, 346 F.3d at 1124.
Returning to Dillmon’s petition, the Board diverged from
its precedent by refusing, without adequate explanation, to
accept his testimony that he subjectively thought Question
18w did not require him to report his felony bribery
conviction. Furthermore, Dillmon’s defense was based, in
part, on his claim the AMEs told him what Question 18w
meant, and he relied on that advice. Thus, before the Board
could discount Dillmon’s defense, it should have addressed
the role of the FAA’s AMEs in the application process. See
Oral Arg. Recording at 20:46–21:20 (agreement by FAA
counsel that AME’s advice is relevant to airman’s intent); cf.
Administrator v. Culliton, NTSB Order No. EA-5178, 2005
WL 2477522, at *2 (Sept. 30, 2005) (rejecting airman’s
argument that he had relied on AME for advice on how to fill
out medical application).
The Board reversed the ALJ on the ground he
erroneously departed from its precedent in two respects.
However, we conclude it was the Board, not the ALJ, that
applied precedent incorrectly. The first error the Board
identified was that the ALJ improperly accepted Dillmon’s
defense about his understanding of Question 18w. Dillmon,
NTSB Order No. EA-5413, at *4. The Board explained it
rejected Dillmon’s argument because it had stated in
Administrator v. Boardman, NTSB Order No. EA-4515, 1996
WL 748190, at *1 (Dec. 20, 1996), that an airman’s failure to
carefully consider a question before providing an answer did
not establish a lack of intent and because it had stated in
16
Administrator v. Sue, NTSB Order No. EA-3877, 1993 WL
157467, at *2 (April 28, 1993), that Question 18w was “not
confusing to a person of ordinary intelligence.” Dillmon,
NTSB Order No. EA-5413, at *4.
The Board’s reliance on Boardman and Sue to reject
Dillmon’s defense is misplaced. Dillmon testified about what
he subjectively believed Question 18w required him to
disclose. Reynolds establishes the relevance of Dillmon’s
subjective understanding, and neither Boardman nor Sue
contradicts this principle. Boardman stands for the
proposition that the airman must read the question carefully
before answering it. Dillmon appears to have done so here—
he testified he discussed Question 18w with the AME on three
occasions. Sue stands for the proposition that the questions
on the medical application are not inherently too vague to
support a finding of intentional falsification. But even in Sue,
the Board relied on the ALJ’s finding that the airman “did
know . . . that what they were asking on the form he should
have said yes to.” Sue, NTSB Order No. EA-3877, at *1.
The second error the Board identified was that the ALJ
departed from precedent by requiring the FAA to prove
Dillmon had the specific intent to deceive the Administrator
when he answered Question 18w. Dillmon, NTSB Order No.
EA-5413, at *4. The Board claimed the ALJ contravened its
decision in Administrator v. McGonegal, NTSB Order No.
EA-5224, 2006 WL 1466922 (May 25, 2006). In
McGonegal, the Board reversed the ALJ after concluding the
ALJ had erroneously articulated the Administrator’s burden
of proof “at least eight times” with no indication he had
applied the correct standard. Id. at *4. Here, by contrast, the
Board has not identified a single instance where the ALJ
misarticulated the burden of proof. In any event, our review
of the ALJ’s decision leads us to conclude he properly
17
distinguished between knowledge of falsity and intent to
deceive.
We conclude with a caution. Although we hold the
Board departed from its precedent in two respects, we do not
suggest the Board must reinstate Dillmon’s medical and
airman certificates. On remand, the Board still must decide
whether the ALJ’s decision in Dillmon’s favor was correct.
Under its precedent, the Board may reverse the ALJ’s
credibility determination, so long as it does so pursuant to the
appropriate standard of review. The Board may even modify
this standard, but only if it does so by reasoned decision
making. Furthermore, the Board is entitled to weigh the
evidence and make factual determinations different from
those made by the ALJ, if supported by substantial evidence.
Finally, the FAA may revisit its interpretation of the intent
element of FAR section 67.403(a)(1) and decide it rejects the
airman’s subjective interpretation of the questions in the
medical application. See Garvey v. NTSB, 190 F.3d 571, 577
(D.C. Cir. 1999) (“[L]ike the [Board], we must defer to the
FAA’s interpretations of its own aviation regulations.”); but
cf. Alaska Prof’l Hunters Ass’n, Inc. v. FAA, 177 F.3d 1030,
1034 (D.C. Cir. 1999) (“When an agency has given its
regulation a definitive interpretation, and later significantly
revises that interpretation, the agency has in effect amended
its rule, something it may not accomplish without notice and
comment.”). But because the Board departed from its
precedent without reasoned explanation, we grant the petition
for review, vacate the order, and remand for further
proceedings.
So ordered.