Cooper v. National Transportation Safety Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 23, 2011 Decided November 15, 2011

No. 10-1326

KENNETH DON COOPER,
PETITIONER

v.

NATIONAL TRANSPORTATION SAFETY BOARD
AND FEDERAL AVIATION ADMINISTRATION,
RESPONDENTS

On Petition for Review of an Order
of the National Transportation Safety Board

Gary Bellair 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
respondents.

Before: ROGERS, GARLAND and BROWN, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Kenneth Cooper seeks review of
the National Transportation Safety Board’s order affirming the
 2

emergency revocation of his airman and medical certificates,
which are required to operate an aircraft, see 49 U.S.C.
§§ 44703, 44709. The revocation was based on the conclusion
that he made an intentionally false statement on his medical
certificate application when he failed to disclose an arrest for an
alcohol-related motor vehicle incident. Cooper contends that the
Administrator of the Federal Aviation Administration (“FAA”)
failed to prove intent because he had reported the arrest and
suspension to the FAA almost two years earlier and hence
lacked any motive to falsify his answer on the application. The
Board ruled that Cooper’s admitted failure to read the question
before answering it constituted willful disregard for truth or
falsity, and he thus had intentionally made a false statement in
his application, in violation of 14 C.F.R. § 67.403(a)(1).
Because the willful disregard standard articulated in
Administrator v. Boardman, NTSB Order No. EA-4515, 1996
WL 748190, at *1 (Dec. 20, 1996), and endorsed by the FAA
is a reasonable interpretation of the regulation, the Board’s
deference to the FAA’s interpretation of its regulation was not
arbitrary or capricious, an abuse of discretion, or contrary to
law. Accordingly, we deny the petition for review.

I.

Pursuant to “the split-enforcement regime” of the Federal
Aviation Act, 49 U.S.C. §§ 40101 et seq.; Garvey v. NTSB, 190
F.3d 571, 573 (D.C. Cir. 1999), which divides rulemaking and
adjudicatory authority between the FAA and the Board, see 49
U.S.C. § 44701(a); id. § 1133, the FAA promulgated medical
certification procedures for airmen, 14 C.F.R. § 67.403.1

1
49 U.S.C. § 44703 on airman certificates provides:

The [FAA] shall issue an airman certificate to an individual
when the [FAA] finds, after investigation, that the individual
 3

Subsection (a) provides: “No person may make or cause to be
made – (1) [a] fraudulent or intentionally false statement on any
application for a medical certificate . . . .” Id. Subsection (b)
provides making such a statement “is a basis for – (1)
suspending or revoking . . . medical certificates.” Id.
§ 67.403(b)(1). Further, subsection (c) provides: “An incorrect
statement, upon which the FAA relied, made in support of an
application for a medical certificate” “may serve as a basis for
suspending or revoking a medical certificate.” Id.
§ 67.403(c)(1).

The relevant facts are undisputed. Cooper has, since at least
the mid-1990s, held airman and medical certificates required to
operate aircraft as a pilot and flight instructor in the United
States. See 49 U.S.C. §§ 44703, 44709. Since about 1996,
Cooper has been going to the same physician, Dr. Jack Jordan,
for the medical examination and physician’s certification that
are required as part of the medical certificate application
process. Prior to his 2010 application, Question 18v of the
second class medical certification application required
disclosure of “(1) any conviction(s) involving driving while
intoxicated . . . ; or (2) history of any conviction(s) or
administrative action(s) involving an offense(s) which resulted
in the denial, suspension, cancellation, or revocation of driving
privileges.” On his 2008 application, Cooper answered “no” to
this question.

is qualified for, and physically able to perform the duties
related to, the position to be authorized by the certificate.

Id. § 44703(a). Further, an airman certificate shall “contain the terms
the [FAA] decides are necessary to ensure safety in air commerce,
including the terms on the duration of the certificate, periodic or
special examinations, and tests of physical fitness.” Id.
§ 44703(b)(1)(C).
 4

Less than two months prior to his 2008 medical
examination, Cooper had been arrested in Texas on February 22,
2008, incident to an alcohol-related motor vehicle offense.
Texas state records show that his driver’s license was suspended
for six months, beginning on May 10, 2008, approximately one
month after his 2008 medical exam. The order of suspension
was dated May 15, 2008.

Almost two years later, on April 13, 2010, Cooper
completed a new second class medical certificate application
and again received a medical examination from Dr. Jordan.
Unlike previous years, the new form’s Question 18v added the
phrase “arrest(s) and/or” in front of “conviction(s)” for alcohol-
related traffic offenses. But as in previous years, despite his
2008 arrest and suspension, Cooper answered “no” to this
question. The medical certificate was issued on or about April
13, 2010.

A month later, on May 19, 2010, an FAA special agent
wrote Cooper advising that the Texas May 10, 2008 suspension
had come to the FAA’s attention, that FAA records revealed
Cooper had provided “no written report of the offenses,” and
that on his April 13, 2010 medical certificate application he had
answered “no” to Question 18v. The letter advised that “there
is evidence that you intentionally provided false or fraudulent
information.” On May 24, 2010, Cooper responded by letter
stating that Question 18v on his April 13, 2010 application “was
answered in error” and that the answer was “‘Yes’ rather than
‘No.’” With regard to the notification requirement, however,
Cooper stated that “a letter was submitted to the FAA” in May
2008. He enclosed a copy of a May 12, 2008 letter addressed to
the FAA stating that “[a]s per 14 C.F.R. [§] 61.15(e),”2 he was

2
Section 61.51(e) provides each person holding an airman
certificate “shall provide a written report of each motor vehicle action
 5

writing to disclose the following incident: “On May 10, 2008, an
administrative action from the state of Texas occurred resulting
in a driver’s license suspension. This occurrence resulted from
my choice to refuse a breathalyzer test on February 22, 2008.”

On June 18, 2010, the FAA issued an Emergency Order of
Revocation (“Emerg. Order”), see 49 U.S.C. §§ 44709(b),
46105(c), revoking Cooper’s airman and medical certificates for
failing to report the alcohol-related motor vehicle actions and for
making a fraudulent or intentionally false statement on his
medical certificate application. The Order stated: “If it is
determined that your statement . . . was not intentionally false or
fraudulent . . . , then your incorrect statement . . . is still the basis
for revocation of your medical certificate.” Emerg. Order at 3.

to the FAA” within 60 days of the action. 14 C.F.R. § 61.15(e). The
section defines a “motor vehicle action” as

(1) A conviction after November 29, 1990, for the
violation of any Federal or State statute relating to the
operation of a motor vehicle while intoxicated by alcohol or
a drug, while impaired by alcohol or a drug, or while under
the influence of alcohol or a drug;
(2) The cancellation, suspension, or revocation of a
license to operate a motor vehicle after November 29, 1990,
for a cause related to the operation of a motor vehicle while
intoxicated by alcohol or a drug, while impaired by alcohol or
a drug, or while under the influence of alcohol or a drug; or
(3) The denial after November 29, 1990, of an
application for a license to operate a motor vehicle for a cause
related to the operation of a motor vehicle while intoxicated
by alcohol or a drug, while impaired by alcohol or a drug, or
while under the influence of alcohol or a drug.

Id. § 61.15(c).
 6

Cooper timely appealed to the Board’s Office of Administrative
Law Judges.

Cooper testified before an administrative law judge (“ALJ”)
that at the time he filled out the medical certificate application
he had not been aware of the change in Question 18v, that he
had not read the question, and that he had simply filled out the
new form the same way he had filled out the old one. He
explained that Dr. Jordan’s nurse would provide him with his
prior medical certificate application form and instruct him to fill
out the new form just “like this [the old form].” He conceded
that his “no” response was incorrect at the time he gave it, and
that he was “aware that [he] had an arrest and a suspension when
[he] filled out [his] application.” When asked “[h]ad you have
read that question, would you have answered yes to that
question,” he responded, “Yes, I would have.” Cooper admitted
that it was “[a] big mistake on [his] part” not to read the
question before he answered it. He also testified that he was not
confused by the question and that he had not consulted Dr.
Jordan or anyone else for guidance in filling out the form.

The ALJ determined the FAA had proved that revocation of
Cooper’s medical certificate was appropriate under 14 C.F.R.
§ 67.403(c)(1), inasmuch as his answer to Question 18v was
false, but found Cooper did not violate section 61.15(e)
(notification requirement) or section 67.403(a)(1) (prohibiting
intentionally false statements). The ALJ credited the testimony
of Cooper and his son that Cooper had sent the May 12, 2008
letter reporting the arrest and suspension to the FAA, noting that
there had been nothing offered to discredit that testimony except
for the fact that the FAA does not have the letter “at this time.”
The ALJ concluded that “there has not been shown any evidence
of the scienter required of an intent to falsify.” The FAA sought
review of the ALJ’s scienter ruling by the Board, arguing that
the ALJ erred in concluding that the FAA had failed to prove
 7

that Cooper intended to answer Question 18v falsely, citing
Board precedent.

The Board granted the FAA’s appeal on scienter and
reversed the ALJ. Administrator v. Cooper, NTSB Order No.
EA-5538, 2010 WL 3358808, at *1 (Aug. 18, 2010) (“Cooper
Order”). It recited the applicable standard to prove intentional
falsification, as set forth in Board precedent based on Hart v.
McLucas, 535 F.2d 516, 519 (9th Cir. 1976). It also noted its
discussion on remand from this court in Administrator v.
Dillmon, NTSB Order No. EA-5528, 2010 WL 2715714 (June
30, 2010) (“Dillmon on remand”), stating that it would consider
an ALJ’s credibility determination regarding an airman’s claim
that he had been subjectively confused by a question and thus did
not knowingly make a false statement on a certificate
application. See Cooper Order, 2010 WL 3358808, at *3. But,
the Board acknowledged, “Dillmon is not directly on-point”
because unlike Dillmon, who said that he read the question but
was confused by it, Cooper “admits that he did not read
[Q]uestion 18v,” id., that he had not been confused by the
question, id. at *3 n.8, and that had he read the question he
would have answered “Yes,” id. at *3. The Board concluded that
the ALJ’s scienter finding lacked “meaningful analysis of the
key underpinnings,” id., and was “directly contrary to
Boardman,” id. at *4, in which the Board had stated that a
“willful disregard for truth or falsity” was sufficient to show
intentional falsification. Observing that “[m]uch like the case at
issue here, in Boardman, the respondent testified he simply
copied the answers from a previous application,” id. (citing
Boardman, 1996 WL 748190, at *3 n.4), the Board “reiterate[d]
. . . that a failure to read a question before answering it renders
the entire medical certificate application process pointless, and
does not provide a defense to a charge” of intentional
falsification, id. The Board affirmed the emergency revocation
of Cooper’s airman and medical certificates, citing precedent
 8

reflecting the FAA’s interpretation that revocation of all
certificates is the appropriate sanction for violating section
67.403(a)(1). Id. at *4 & n.12 (citing Administrator v. Culliton,
NTSB Order No. EA-5178, 2005 WL 2477522, at *6–7 (Sept.
30, 2005); Administrator v. McCarthney, NTSB Order No. EA-
3245, 1990 WL 339193, at *3 (Dec. 28, 1990)). Cooper
petitions for review.

II.

Section 67.403(a)(1) of the FAA’s regulation prohibits the
making of a “fraudulent or intentionally false statement” on a
medical certificate application. 14 C.F.R. § 67.403(a)(1).
Intentional falsification has three elements: (1) a false
representation (2) of a material fact (3) made with knowledge of
the falsity. See Manin v. NTSB, 627 F.3d 1239, 1243 (D.C. Cir.
2011); Dillmon v. NTSB, 588 F.3d 1085, 1093 (D.C. Cir. 2009);
accord Hart, 535 F.2d at 519. Cooper does not deny the falsity
of his response to Question 18v, nor that his false response was
in reference to a material fact. Rather, he contends that the FAA
was required — and failed — to establish that he knew that his
answer to Question 18v on the 2010 medical certificate
application was false. He maintains that applying Boardman’s
“willful disregard” standard to prove an intent to knowingly
falsify an answer “defies logic” where the prior self-report of the
arrest and suspension of his driving privileges “negates any
rationale for an intentional falsification of his answer to Question
18v.” Pet’r’s Br. 9.3

Our review of the Board’s order is, as Cooper
acknowledges, limited to determining whether the Board’s

3
Cooper briefly raises the issue of Board deference to ALJ
credibility determinations, but he neither elaborates on the point nor
challenges any factual findings. See FED. R. APP. P. 28(a)(9)(A).
 9

decision is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A),
understanding that the Board’s findings need only be supported
by substantial evidence, id. § 706(2)(E); see also id. § 557(b). A
reviewing court will “defer to the wisdom of the agency,
provided the decision is reasoned and rational . . . .” Dillmon,
588 F.3d at 1089 (quoting Chritton v. NTSB, 888 F.2d 854, 856
(D.C. Cir. 1989) (citing Bowman Transp., Inc. v. Arkansas-Best
Freight Sys., Inc., 419 U.S. 281, 286 (1974))). Moreover, the
FAA’s interpretation of its “regulation is to be accorded
deference in judicial deliberations,” unless it “is clearly contrary
to the plain and sensible meaning of the regulation.” Hart, 535
F.2d at 520; see also Auer v. Robbins, 519 U.S. 452, 461 (1997);
Garvey, 190 F.3d at 577.

Cooper’s challenge to the Board’s decision presents the
following question: to prove an intentional falsification in
violation of 14 C.F.R. § 67.403(a)(1), must the FAA show that
at the time the airman completed his application he had actual
knowledge that his answer to a question on his medical
certificate application was false, or is it sufficient to show that
the airman intentionally failed to read the question and therefore
acted in willful disregard for the truth or falsity of his answer.
Cooper’s brief is short on legal analysis, relying only on Manin,
Singleton v. Administrator, 588 F.3d 1078 (D.C. Cir. 2009), and
Hart. Previously this court has held that intentional falsification
under section 67.403(a)(1) requires proof of “actual knowledge”
of the false statement and that the airman’s subjective
understanding of the question in the medical certificate
application is relevant to the offense of intentional falsification,
adopting the Ninth Circuit’s analysis in Hart, 535 F.2d at
519–20, of a nearly identical regulation.4 See Dillmon, 588 F.3d

4
At issue in Hart was 14 C.F.R. § 61.59(a)(2), which
provides:
 10

at 1093–94; Singleton, 588 F.3d at 1082; accord Manin, 627
F.3d at 1243–44. In Hart, the Ninth Circuit defined intentional
falsification based on the Supreme Court’s traditional definition
of fraud in Pence v. United States, 316 U.S. 332 (1942). 535
F.2d at 519. There, the Supreme Court held that intent to
defraud can be presumed from knowingly false statements.
Pence, 316 U.S. at 339. Given this well-established definition of
fraud, the Ninth Circuit concluded that it was unlikely the FAA
intended any other meaning given its silence on the issue. Hart,
535 F.2d at 519; see also Erickson v. NTSB, 758 F.2d 285, 288
(8th Cir. 1985).

In all of our cases relying on Hart the airman had read the
question in the medical certificate application and answered it in
accord with his subjective understanding of what information
was being sought by the questions. The court’s vacatur of the
Board’s orders in these cases stemmed from the Board’s failure
to adhere to its precedent according deference to ALJ credibility
findings and establishing the relevance of an airman’s subjective
understanding of a question. See Manin, 627 F.3d at 1243, 1244;
Dillmon, 588 F.3d at 1090, 1094; Singleton, 588 F.3d at 1082,
1084. Cooper’s case is different. It involves an antecedent
circumstance: the question was not read at all, and the airman
intentionally made the choice not to do so yet certified the
truthfulness of his answer, which he would have known was false
had he read the question. The court in Dillmon acknowledged

No person may make or cause to be made: ... (2) Any
fraudulent or intentionally false entry in any logbook, record,
or report that is required to be kept, made, or used to show
compliance with any requirement for the issuance or exercise
of the privileges of any certificate, rating, or authorization
under this part.

Id.
 11

this distinction, stating that “Boardman stands for the proposition
that the airman must read the question carefully before
answering it.” 588 F.3d at 1094.

The Board, in affirming the FAA’s view that Cooper had
intentionally falsified his answer to Question 18v, relied (as did
the FAA) on its decision in Boardman. In that case the Board
explained:

The very act of submitting a medical certificate
application invites reliance by the FAA on the
responses it contains, and the nature of the responses,
every airman can be fairly presumed to appreciate,
dictates whether the certificate will be issued. It seems
to us that an airman who, knowing this, tenders an
application that turns out to have a wrong answer to one
or more of the many questions he freely chose not even
to read, much less to thoughtfully answer, cannot
reasonably argue that he lacked the intent to give false
information, for the submission of inaccurate
information is a natural and foreseeable consequence of
completing an application in a manner that essentially
guarantees its unreliability. We think that such an
airman, having acted in a manner that could be viewed
as evincing a willful disregard of the truth or falsity of
the information officially submitted and, therefore, in a
way reflecting contempt for the airman medical
certification process, should be determined to have
intended that whatever answer he gave be utilized in the
review of his qualifications. Allowing the airman later
to assert that a different answer would have been given
had he read the questions (and, in the process, to
disavow a signed assurance to the effect that they had
been perused) would promote a kind of “heads-I-win,
tails-you-lose” fraud in filling out applications that we
 12

are reluctant to excuse or reward by accepting the kind
of defense on which the respondent in this proceeding
rests.

Boardman, 1996 WL 748190, at *1.5

In adopting a “willful disregard” standard, the FAA and the
Board embraced a doctrine akin to willful blindness,6 not a
negligence standard. This is clear from the Board’s reference to

5
The Board had no occasion to decide Boardman’s case on
the basis of “willful disregard” because it concluded that Boardman’s
testimony that he had not carefully read the question was not credible
and that he had “read the entire question and decided to answer it
falsely.” Id. at *2. That decision was not reviewed. Although the
Board has adhered to the same interpretation of intentional
falsification in distinguishing cases where an airman has read the
question but did not understand the information being sought, see
Dillmon on remand, 2010 WL 2715714, at *4, the inquiry into the
reasonableness of the FAA’s interpretation that proof of willful
disregard is sufficient to show intentional falsification is one of first
impression for this court.
6
In a recent Supreme Court case not cited by the parties, the
Supreme Court noted that “[t]he traditional rationale for [the willful
blindness] doctrine is that defendants who behave in this manner are
just as culpable as those who have actual knowledge.” Global-Tech
Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2069 (2011) (internal
citation omitted). “Given the long history of willful blindness and its
wide acceptance in the Federal Judiciary,” the Court saw “no reason
why the doctrine should not apply in civil lawsuits for induced patent
infringement under 35 U.S.C. § 271(b).” Id. Absent any agency
interpretation to which deference could be owed, the Court established
its own requirements (based on circuit court precedent) for satisfying
the scienter standard of the statute. Id. at 2070–71. Here, by contrast,
we owe deference to the FAA’s reasonable interpretation of the
requirements for satisfying its own regulations.
 13

the applicant who “freely cho[oses]” not to read a question,
Boardman, 1996 WL 748190, at *1, and its acknowledgment that
the standard does not apply to inadvertent mistakes, id. at *1
n.6.7 Under this standard, the finder of fact may infer that a
defendant acted knowingly if he deliberately closed his eyes to
what otherwise would have been obvious to him and did not act
through ignorance, mistake, or accident. See generally United
States v. Alston-Graves, 435 F.3d 331, 337–40 (D.C. Cir. 2006);
United States v. Graham, 431 F.3d 585, 590 (7th Cir. 2005); see
also United States v. Pomponio, 429 U.S. 10, 12 (1976). Under
the FAA’s interpretation of its regulation, supported by the
Board’s decision in Boardman, where an airman intentionally
chooses not to carefully read the question for which he is
providing an answer that he certifies by his signature to be true,
a factfinder can infer “actual knowledge” from a willful
disregard for truth or falsity. A defense of deliberate inattention
fails where the applicant is attesting to events about which he has
actual knowledge. The FAA has fully embraced the Board’s

7
In Boardman, the Board excepted from its willful disregard
standard the applicant who “inadvertently mismark[s] or overlook[s]
a question on medical history that he misread or thought he had read
but had not.” Id. “It applies, rather, to those who would have their
medical histories evaluated on the basis of an application they know
has not been conscientiously prepared.” Id.
 14

reasoning,8 and the Board could properly defer to the FAA’s
interpretation of its regulation.

The “willful disregard” standard is generally consistent with
the traditional concept of fraud. On appeal the FAA points to
common law cases extending fraud liability to circumstances
where a defendant had knowing disregard for the truth or falsity
of his statements. For example, in Lehigh Zinc & Iron Co. v.
Bamford, 150 U.S. 665 (1893), the Supreme Court held that a
person who “assum[es] or intend[s] to convey the impression
that he has actual knowledge of the existence of such facts, when
he is conscious that he has no such knowledge,” is liable for
fraudulent misrepresentations. Id. at 673. The Second
Restatement of Torts states that a misrepresentation is fraudulent
if the speaker “does not have the confidence in the accuracy of
his representation that he states or implies.” RESTATEMENT (2D)
OF TORTS § 526 (1977).

Indeed, the willful disregard standard for knowledge
adopted by the FAA as an interpretation of section 67.403(a)(1)
is stricter than the standard that the Federal Mine Safety and
Heath Review Commission adopted under section 110(c) of the
Mine Act, 30 U.S.C. § 820(c),9 to which this court deferred in

8
In seeking Board review, the FAA argued that “Cooper’s
claimed failure to read all of the medical form prior to completing it
[did not] negate[] his having not disclosed material information that
he was well aware of at the time he completed the application.”
Complainant’s Appeal Br. at 6, 9. Observing that the Board had
previously addressed this issue in Boardman, the FAA argued that the
ALJ had misapplied the standard set out in Hart for proving
intentional falsification, distinguishing cases such as Singleton and
Dillmon. See id.
9
Section 110(c) provided that where a corporate operator
violated the Mine Act or its standards, “any director, officer, or agent
 15

Freeman United Coal Mining Co. v. Federal Mine Safety &
Health Review Commission, 108 F.3d 358, 363 (D.C. Cir. 1997).
There, the court first acknowledged that “‘[k]nowingly’ may
convey any of a number of meanings.” Id. It then concluded
that the plain text of the statute did not answer the mens rea
question or compel a particular answer, and that Congress had
not definitively resolved the issue. Id. The court concluded that
the definition adopted by the Federal Mine Safety and Health
Review Commission, calling for individual liability where “[a]
person has reason to know when he has such information as
would lead a person exercising reasonable care to acquire
knowledge of the fact in question or to infer its existence,” id.
(internal citation omitted), was a “fair interpretation” of
“knowingly” that fell within the range of acceptable meanings
and thus was entitled to Chevron deference, id. at 363–64.

So too here, for section 67.403(a)(1) does not resolve the
issue and Cooper does not suggest that Congress has, see supra
note 1. Alluding to the requirement in the FAA’s guidelines for
aviation medical examiners (“AMEs”) that AMEs defer medical
certification if an airman reports a refusal of a blood-alcohol test
in a traffic incident and seek additional information before
deciding whether the applicant qualifies for a medical certificate,
the Board observed that a FAA regional flight surgeon had
testified before the ALJ that “AMEs rely on the truthfulness of
the answers that an airman provides on his or her application.”
Cooper Order, 2010 WL 3358808, at *2. Inasmuch as the
examining doctor relies on the airman’s answers to the questions
on the form, the reasonableness of the FAA’s interpretation of
section 67.403(a)(1) is manifest, consistent with the FAA’s
purpose in promulgating air safety regulations.

. . . who knowingly authorized, ordered, or carried out such violation,”
could be held liable. 30 U.S.C. § 820(c) (1994).
 16

Cooper does not dispute the “willful disregard” standard
adopted by the Board. Indeed, he admits that he voluntarily
chose not to read Question 18v. Instead he maintains that it
“defies logic” to conclude that he intentionally falsified his
response to Question 18v because his alleged letter to the FAA
reporting his arrest and suspension “negates any rationale for an
intentional falsification” of his medical certificate application.
Pet’r’s Br. 9. This view appears predicated on the requirement
of a specific intent to deceive, but in Dillmon the court held that
proof of intent to deceive is not required for a violation of section
67.403(a)(1). 588 F.3d at 1093–94. In view of evidence that the
AMEs base their medical examinations on information provided
by the airman in the medical certificate application, the Board’s
evaluation of the nature of the reliance on which the FAA’s
regulatory scheme is premised reflects the type of expertise to
which the court owes deference.

Dr. Jordan, the AME who conducted Cooper’s April 13,
2010 medical examination, testified that he did not remember
Cooper raising the issue of his arrest and suspension for an
alcohol-related motor vehicle incident during the examination,
Cooper Order, 2010 WL 3358808, at *2, and Cooper did not
suggest otherwise. As such, the doctor was afforded no
opportunity to get further information from Cooper before
approving his medical certificate application. Although Dr.
Jordan subsequently determined that the arrest and suspension
did not disqualify Cooper, the Board could reasonably conclude
that such a sequence of events is not the regime contemplated by
the FAA in promulgating section 67.403(a)(1). As the Board
noted in Boardman, “[a]n individual who has discharged his
obligation to furnish reliable, personal medical information in
such an untrustworthy fashion has obtained by trick any medical
certificate thereafter received and, at the same time, he has called
in question his qualification to hold any airman certificate, since
an individual possessing the care, judgment, and responsibility
 17

required of a certificate holder would not file a medical
certificate application whose truthfulness was in doubt.” 1996
WL 748190, at *1 n.8.

To the extent Cooper hints that the Board was required to
defer to the ALJ’s findings regarding his subjective intent at the
time he answered the questions on the application, supra note 3,
he simply ignores that in his case, by contrast with those
previously before the court, there is no question whether the
airman’s subjective understanding of a question he read negates
his scienter. See Dillmon, 588 F.3d at 1094. Regardless of
whether he had a motive to falsify his answer to Question 18v,
by not reading the question before answering it, Cooper rendered
the application unreliable and he obtained a medical certificate
based on false information. And Cooper’s protest that he was
not aware of the change to the language of Question 18v between
2008 and 2010 when he filled out the 2010 application is a red
herring.10 By copying his answers from the 2008 application, he
apparently suggests that he innocently assumed that the form had
not changed and thus he accurately answered “No” to Question
18v. As noted, the 2008 application did not require disclosure of
an arrest for an alcohol-related offense; it did, however, require
marking “Yes” for convictions or administrative actions resulting
in suspension. Cooper testified that he was aware of both the
arrest and the suspension at the time he filled out the 2010
application; thus, he would have been required to check “Yes”

10
The medical certificate application has 19 questions, some
with multiple parts, and the type font is quite small, at least as the
application form appears in the record before this court. Cooper’s
counsel offered at oral argument, in response to the question how one
could reconcile Cooper’s not reading the questions with his
certification that his answers were true, that “people are lazy.” Oral
Arg. at 07:02. If this were a cognizable defense, then the FAA could
never rely on the truthfulness of an airman’s medical application.
 18

even if the application form had not changed between 2008 and
2010.

Accordingly, because the FAA’s “willful disregard”
standard is a reasonable interpretation of intentional falsification
under 14 C.F.R. § 67.403(a)(1), we deny the petition.