Reporting DUI on FAA medicals
Throughout my career as an aviation attorney and licensed pilot, my clients have been plagued with question 18v of the FAA airmen medical application. The question deals with reporting to the FAA previous arrests and convictions of various issues, but for the purposes of this article, I am focusing entirely on DUI related issues.
Question 18v as updated in 2010 now requires airmen applicants for any class medical applications to report all DUI arrests and/or convictions on the application. While convictions have always been asked and there is a plausible relationship between a DUI arrest and being fit to fly an airplane, what about the unsuspecting airmen who was wrongfully arrested for a DUI, fought his case and beat it. Does he have to report that on a medical application? The short answer is yes, unless he obtains a valid court ordered expungment of that arrest, the airmen is required to report an arrest for a DUI regardless of the outcome of the case on all future medicals. Failure to do so will likely result in a revocation of the issued medical and a revocation of ALL pilot ratings and certificates. Enter the stage, my client, Stephen Taylor. Mr. Taylor was a combat veteran pilot and severed the United States honorably. Then he transitioned to commercial ATP pilot duties for a decade, each year faithfully filling out his Class 1 medical application, answering no to all the questions. In 2010, as he had done 18 times previously, he filed out his medical application. Question 18v had just changed to include the word “arrest” of DUI’s (previously it only asked for convictions). The form had not changed, the questions had not changed, the FAA simply just added the word arrest to 18v. Mr. Taylor knew his answers were the same, and he checked no to all the boxes. However, in 2009, Mr. Taylor was charged with a DUI in California. He plead not guilty, tried the case and was found not guilty by a Court. Accordingly, his answer to Question 18v was incorrect. Many do not know this, but the FAA has an entire department in Oklahoma City that runs national drivers license background checks on medical applications. That’s all they do. When they see an arrest or conviction for DUI and its not reported on 18v, they refer it to FAA counsel, who in turn, in every situation I have ever seen, emergency revoke the certificates and medical of the airmen claiming that such a omission/lie on 18v so interferes with the safety of air commerce that the airmen is not fit to hold any certificates. This is what happened to Mr. Taylor. My entry into this case comes in the winter of 2011 when Mr. Taylor is served with a formal revocation of his medical and airmen certificates. Surely I thought that such a misunderstanding could be resolved, so we begin the appeal process starting with the ALJ for the NTSB. During the Christmas season of 2011, we conducted a day trial in Washington, DC on this subject. The FAA arguing that failure to read the wording of the application is tantamount to outright deception and that the airmen is unfit to be a pilot. Dumbfounded, I argued common sense. Judge it was a mistake..an error in judgment. However, failing to disclose the arrest was immaterial as he would have received a medical pursuant to the AME manual. That is when Mr. Taylor and his counsel were body slammed by the Hulk Hogan of administrative law judge rubber stamping. The Judge found that Mr. Taylor was deceptive, failed to read the questions and revoked his certificates and medical. What the heck is going on here? Trying for some level headed thinking, we appealed to the full board of the NTSB. With a scathing published opinion, the Full Board affirmed the NTSB ALJ. At this point I was convinced I was in the twilight zone. Certainly, our last and reasonably best chance of getting a positive result is to go one further level to the District of Columbia Circuit Court of Appeals which we did. Appeals were filed, briefs were written and the case was before the Court for disposition in May 2012. Then the Pilots Bill of Rights passed, granting the airmen a very important right, that being, the removal of a administrative regulation that in almost all cases binds the administrative law judge to the findings the FAA makes and the sanctions they impose. For years I have argued that that the NTSB was a rubber stamp for the FAA because of the regulations, finally, Congress cut through the crap, and rescinded that piece of legislation, however, it was not retroactive, so Mr. Taylor didn’t get the benefit of it in his case. I ask the Court of Appeals for a secondary briefing schedule to attempt to persuade them that the Pilots Bill of Rights has some value here in the fairness of the proceedings. The Court agrees and we brief that issue. The case is now ripe in September 2012. The Court sets oral arguments in February 2013. I and the FAA show up, and it is now my time to speak to some very powerful judges on the ridiculousness of what is going on here.
Oral argument was bumpy, but I have never been in an appellate hearing where the Judges don’t make you feel like a toddler asking for a lollipop. You are dealing with brilliant legal minds, and they see things differently then usually both sides. Getting smacked around at oral argument is part of the job. In some of my most ego bruising oral arguments, I have ended up winning the case. You just cant tell from the oral arguments how the judges are going to go. Months pass. Finally, July 2013 and the Court announces its decision. Its time to put the FAA in check, bring some common sense to this issue and reign in the abuses of the FAA. Well, the opinion is attached here, read it for yourself. The Court of Appeals upheld the revocation in a blistering published opinion which I have included at the bottom of this article. Meanwhile, the FAA issued Mr. Taylor a first class medical in the Spring of 2013. While I am not excited about publishing a huge loss where I was the attorney, I am doing so for many reasons. Primarily, I love flying. I hope this article is read by every pilot in the country and pilots take heed to the warnings of this article. But more importantly, I want to expose the FAA for the hypocrisy it cloaks itself in when exercising its authority. When the FAA “catches” an airmen who has not disclosed a DUI arrest, they proceed under vested authority to emergency revoke the airmen’s certificates and medical application based on a threat to public safety. This authority is abusive. What threat did airmen Taylor pose to air safety because he was merely arrested for a DUI and subsequently acquitted of the charge? Absolutely none. In fact, the FAA as I stated earlier issued Taylor a medical in the Spring of 2013. So this entire exercise resulted in the following: Tens of thousands of dollars in legal fees, a loss of flying rights of a veteran commercial pilot for 1 year, and now making that same pilot recertify to get all of his certificates back. Hopefully by the end of this year, Taylor will be piloting 737’s again, however, and for that I scratch my head and wonder why no Judge, administrative agency or employee could see exactly what I was saying.. Revocation of Taylor’s airmen certificates and medical was absolutely ridiculous. If he was a threat to air safety in 2010.. He is absolutely a threat today. The fact is he was never a threat. He was an asset to air safety. Everyone knew it at every level. The legal profession gets it right most of the time.. However, this was an epic fail on all levels. Hopefully FAA administrators will use their power more conservatively and not witch hunt great airmen like Mr. Taylor in the future. The likelihood of that is probably about as much as me winning the power ball lottery. docs/Taylor Opinion - DC circuit.pdf