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.