Twomey v. National Transp. Safety Bd., 86-1939

• Decision Date: 23 June 1987
• Docket Number: No. 86-1939,86-1939
• Citation: 821 F.2d 63
• Parties: Thomas F. TWOMEY, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, Donald D. Engen, Administrator, Federal Aviation Administration, Respondents.
• Court: U.S. Court of Appeals — First Circuit

Page 63

821 F.2d 63

Thomas F. TWOMEY, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, Donald D. Engen Administrator, Federal Aviation Administration, Respondents.

No. 86-1939.

United States Court of Appeals First Circuit.

Argued April 6, 1987.

Decided June 23, 1987.

Karnig Boyajian, Boston, Mass., for petitioner.

Vicki S. Leemon, with whom Peter J. Lynch, Philadelphia, Pa., Manager, Enforcement Proceedings Branch, was on brief, for respondents.

Before CAMPBELL, Chief Judge, BREYER and SELYA, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

Thomas F. Twomey brings this petition for review of an order issued by the National Transportation Safety Board ("NTSB") affirming the initial decision and order of the Federal Aviation Administration ("FAA") revoking his airline transport pilot and other licenses. We uphold the NTSB's order.

On May 6, 1984, an FAA inspector monitoring a Delta Air Lines flight aboard which Twomey, a senior Delta captain, was to serve as pilot-in-command requested to inspect Twomey's pilot and medical certificates. Upon inspection, the FAA representative noted that Twomey's first-class airman medical certificate had expired on April 30, 1984. ¹ Twomey did not undertake the flight as a required flight crewmember.

On or about May 7, 1984, Twomey applied in Boston, Massachusetts, to Dr. David E. Rosengard for a first-class medical certificate. On his application, Twomey made an entry reflecting that the application was made on April 30, 1984, and asked Dr. Rosengard to backdate the medical certificate. Dr. Rosengard agreed and issued the certificate with the April 30, 1984 date.

Twomey thereafter presented the certificate to his employer, Delta Air Lines, to demonstrate that he had had a valid and current medical certificate on flights he had made subsequent to April 30, 1984. Twomey had participated as a required crewmember on a number of Delta flights between May 1, 1984 and May 6, 1984.

After learning of the falsification, the administrator of the FAA concluded that any flights conducted between May 1, 1984 and May 6, 1984, were in violation of section 61.3 of the Federal Aviation Regulations ("FAR"). ² Moreover, the administrator determined that Twomey had made an intentionally false statement in his application for a medical certificate in violation of section 67.20(a)(1) of the FAR. ³ The administrator then proceeded to revoke Twomey's medical, pilot, flight engineer and ground instructor certificates pursuant to his authority under 49 U.S.C. Secs. 1429(a) and 1485(a) (1982) to issue emergency orders whenever, in the administrator's opinion, "an emergency requiring immediate action exists in respect of safety in air commerce."

Twomey administratively appealed pursuant to 49 U.S.C. Sec. 1429. After an evidentiary hearing, an administrative law judge sustained the emergency order of revocation. Twomey appealed further to the National Transportation Safety Board which affirmed the FAA's order.

In this petition for review, Twomey raises three issues which we discuss below.

I.

Twomey argues that the backdating of his application for renewal of a pilot's first-class medical certificate did not constitute an intentionally false statement of a material fact. While section 67.20(a)(1) does not in so many words require the falsehood to relate to a "material fact," it is undisputed that such is required. See, e.g., Cassis v. Helms, 737 F.2d 545, 546 (6th Cir.1984). In denying the materiality of the false date, Twomey asserts that it did not relate to his physical or psychological condition and hence lacked medical significance. Twomey says that in every case where the NTSB has previously found that the misstated or concealed fact was material, the fact carried some medical significance. He asserts that the FAA has never questioned his physical or mental health and, therefore, the false date on the application had no adverse effect on public safety.

The NTSB's conclusion of materiality was as follows:

In the instant case, respondent's conspiracy with Dr. Rosengard to backdate the airman medical certificate that was issued May 7, 1984, was for the purpose of using the certificate, backdated to April 30, to deceive both his employer, Delta, and the FAA by falsely claiming that, during the flights that were conducted for Delta between May 1, 1984 and May 6, 1984, respondent was properly certificated when, in actuality, his certificate had expired. The Board therefore concludes that the false representation was in reference to a material fact.

We think the NTSB was well within its authority to reach this conclusion. For a statement to be material in situations like the one before us, it need only have a natural tendency to influence, or be capable of influencing, a decision of the agency in making a required determination. Cassis v. Helms, 737 F.2d at 547; Poulos v. United States, 387 F.2d 4, 6 (10th Cir.1968). Regardless whether Twomey's health was or was not perfect from April 30 on, the false backdate could influence the FAA's determination whether he was qualified under its rules and regulations to fly as pilot-in-command during the period May 1-6.

In Cassis the court found that a pilot's false entries about 150 hours of flight time in his logbook were material where the logbook was required as part of an application for an airline transport pilot certificate, even when the pilot had enough hours to fulfill the 1,500 requirement without the false 150 hours. 737 F.2d at 547. The court found that since the pilot did not inform the FAA which entries were accurate and which were false, "the false entries were capable of influencing the ultimate decision about whether [the pilot] had 1500 hours of flight experience." Id. Moreover, the court found that the false entries could be used by the pilot to show compliance with other FAA flight experience requirements.

The situation here is analogous to that in Cassis. The NTSB was entitled to conclude that the date of the application formed a critical element of the medical certificate's validity and, thus, of the applicant's qualifications for flight at a particular time. The date of the application here was material to the date the doctor wrote on the medical certificate and this, in turn, was material to the FAA's decisions concerning Twomey's qualifications for flight.

Had Twomey placed the true date of May 7 on the application, thus receiving a medical certificate of like date, it would have been apparent to the FAA that the flights Twomey conducted between May 1 and May 6 were in violation of FAA regulations requiring a pilot-in-command to have a current medical certificate. 14 C.F.R. Sec. 67.3(c) (1987). Thus, the backdating of the application had the capability of making the FAA believe that Twomey had always held a current medical certificate and therefore of preventing the agency, as well as his employer, from taking action against him. We have no question, therefore, that the false date on the application was a material misstatement.

II.

The FAA also found Twomey in violation of section 61.3 of FAR by acting as a required crewmember on a number of Delta Air Lines flights when he did not have an appropriate medical certificate.

At the hearing before the administrative law judge, evidence was introduced, and there was a stipulation, showing that Twomey had taken part in a number of Delta Air Lines flights as a regularly assigned crewmember between May 1, 1984 and May 6, 1984. There was evidence that as a very senior Delta captain, possessing some 28 years of experience, he had been allowed to "bid" on these routes as part of Delta's regular assignment process and, thereafter, flew as assigned crew. Twomey argues, however, that the FAA never established that he flew specifically as pilot-in-command rather than in some lesser position. If Twomey had served as pilot-in-command, section 61.3(c) required his medical certificate to be first class and current. If, however, he had served as first or second officer, his existing certificate which had "expired" as a first-class medical certificate on April 30, would still have had validity as a second-class medical certificate, making him "legal." ⁴

Twomey's attorney made this argument, along with a good many others, to the agency, but presented no evidence that Twomey, in fact, had flown in a subordinate role. The NTSB made no specific finding as to Twomey's capacity on these flights. However, it found that flights made between May 1 and May 6 were in violation of FAR 61.3 because Twomey's certificate had expired. Since the certificate could only have expired if he flew as pilot-in-command, this was tantamount to a finding that he flew in that capacity. The only question, therefore, is whether there is substantial evidence in the record to support a finding that he had flown as pilot-in-command rather than in a more junior capacity. ⁵

The record makes clear that Twomey was a captain for Delta. Delta's Chief Pilot in Boston also described him as one of the senior pilots with the airline, who had been with Delta and a predecessor airline about 28 years. The FAA argues that captains generally perform as pilots-in-command, an assertion which fits the dictionary definition of "captain" (derived from the Latin, "capitaneus" meaning "foremost, chief") as "a person having authority over and responsibility for a group or unit." Webster's New International Dictionary (3d ed. 1971). Twomey's likely command status was confirmed by the fact that on the date of the enroute...