NTSB: Falsification Cases Require Specific Findings

In FAA v. El Khoury and Abbassi (NTSB, 8/2/2016), the FAA revoked pilot and instructor certificates alleging falsification of a student’s logbook. To summarize briefly, the FAA claimed El Khoury, who was not a CFI, provided training to a student and then, along with Abbassi, who was a CFI but did not provide instruction, applied Abbassi’s signature stamp to the entries. The FAA’s case was largely based on the student and his father’s testimony. The two accused airmen denied giving any flight instruction and also denied having anything to do with stamping Abbassi’s signature in the student’s logbook.

The Administrative Law Judge (ALJ) upheld the revocations, finding in general terms the testimony of the student to be more credible than the “self-interested” testimony of the accused. On appeal to the full NTSB, the NTSB sent the case back to the ALJ for reasons that will be of interest to practitioners more for the applicable procedural and evidentiary rules than any substantive content.

Generally speaking, falsification violations under FAR 61.59 are subject to the 3-prong test announced in Hart v. McLucas, 535 F.2d 516, 519 (9th Cir. 1976). In order to sustain a falsification violation, the FAA must prove an airman: (1) made a false representation, (2) in reference to a material fact,  (3) with knowledge of the falsity of the fact.

The NTSB’s response to a second Court of Appeals case, Administrator v. Dillmon, 79 588 F.3d 1085 (D.C. Cir. 2009), on remand, NTSB Order No. EA-5528 (2010),  held that as an essential corollary to the third prong and often to the first prong, ALJs must:

“make clear credibility findings tied to specific findings of fact based upon the testimony and evidence presented at the hearing.” The NTSB will not “rely on implied credibility determinations which may only be gleaned from the law judge’s final ruling in a given case.” Administrator v. Langford, NTSB Order No. EA-5673 (2013):

The NTSB found the ALJ failed to make the “specific findings” and “clear credibility determinations” required by NTSB precedent. It accordingly remanded the case to the ALJ to expand the findings and declined to review the case until he did so.

The case may be read at http://bit.ly/2bOT1qc (link to pdf)