Dillmon v. NATIONAL TRANSPORTATION SAFETY BOARD

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

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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

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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

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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

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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)).

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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.

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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.

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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

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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.”).

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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

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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

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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,

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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

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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.