Enforcement actions for intentional omissions on 3rd class medical/PPL

Discussion in 'Medical Topics' started by Tony17, Jun 18, 2019.

  1. Tony17

    Tony17 Guest

    Let me be clear, I am not looking for advice.

    I'm looking for what range of enforcement actions have actually been taken against a pilot with a third class medical and PPL, who was later found to have intentionally omitted information during their medical, which would have required medical testing and may have wound up getting approved.

    With the assumption that the medical issue wasn't obvious to a layperson to have direcly caused an incident. So, for example, there was a case of a commercial pilot who had a diabetic seizure during an air taxi flight, and a passenger who was a student pilot had to take the controls. I'm not talking about that type of scenario! Like, what if that person had been a 3rd class/PPL pilot who of course wasn't flying passengers, and had a medical review due to an incident attributable to an engine going out, wind causing a horrible landing, etc, and was found in the review to have had diabetes and reliance on an insulin pump.

    What I've been able to find details on was only for pilots with commercial and airline licenses.

    I haven't been able to find what's actually happened with situations of third class/PPL. Revokation of license? Fine? Jailtime?

    Again, I'm not looking for what the law says they can do, but what the FAA and prosecutors have actaully gone for and gotten.
     
  2. mryan75

    mryan75 Cleared for Takeoff

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    You're screwed. Intentionally lying on your medical is a felony. This isn't a boo-boo. Medical cert, gone. Pilot certs, gone. Plus the above-mentioned felony charge if you did something dumb enough.

    But beyond that, who says "a 3rd class/PPL who of course wasn't flying passengers"? There's no of course about that. So if you hurt somebody, be it a passenger, or damage property, you're in that legal jeopardy. You can kiss your insurance goodbye, they aren't going to cover anything.

    Fun, fun!
     
  3. Stan Cooper

    Stan Cooper Cleared for Takeoff

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    Here we go again. Google "FAA Operation Safe Pilot." Forty some Northern California pilots, many private pilots with 3rd class medical certificates, had their airman certificate and medical certificate revoked under emergency orders or revocation, and were then indicted on charges of violating Title 18, U.S. Code, Section 1001 (making false statements to a Federal agency). Each count is punishable by a fine of up to $250,000, five years in a federal penitentiary, or both.

    Don't think it could happen to you? Think again.
     
  4. dans2992

    dans2992 En-Route

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    From what I’ve seen, unless you’re collecting disability, not a whole ton. Haven’t heard of anything anyway...
     
  5. dans2992

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    Were they claiming disability?
     
  6. PeterNSteinmetz

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  7. Stan Cooper

    Stan Cooper Cleared for Takeoff

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    Yes, in some of the cases. In my case, I had been on long term disability for one year between July, 1995 and July, 1996. I wasn't flying while I was collecting disability, and in July, 1996, I got off disability and went back to work. The Operation Safe Pilot "investigation" was a database match between the FAA medical certificate database and the SSA Title 2 and Title 16 disability databases, in a blatant violation of the privacy act. My name and SSN popped up as currently collecting disability and holding a third class medical certificate. They didn't bother to check to see that I had terminated disability payments eight years before the investigation.

    After I got my my medical back following a thorough review of my medical records and a medical exam by a Senior AME, I went through the recertification process to get my airman certificate back, and once I had both my airman certificate and medicate certificate in my wallet, I sued the agencies for violating the privacy act of 1974. The case went to the U.S. Supreme Court.
     
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  8. dans2992

    dans2992 En-Route

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    I guess I should know this, but what happened?
     
  9. Clip4

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    An insulin pump and lied on the Class 3. Not exactly like I forgot about it would work.
     
  10. PeterNSteinmetz

    PeterNSteinmetz Cleared for Takeoff

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    Stan, what happened with the criminal charges? Of course, ,pmerely being indicted is bad enough!
     
  11. bbchien

    bbchien Touchdown! Greaser!

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    No quarter is being given here to those who would intentionally commit a class 4 felony via falsification of the record.
     
  12. Stan Cooper

    Stan Cooper Cleared for Takeoff

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    Rather than spend another $100k or so on a trial, I plead guilty to a single misdemeanor and paid a $1,000 fine with two years of unsupervised probation. In retrospect, I should have gone to trial. The plea agreement was offered by the U.S. Attorney because another defendant, a retired Delta 777 captain, had gone to trial and it resulted in a hung jury. When the AUSA polled the jurors, all but two said there was no way they'd convict him of anything.

    The problem with a plea agreement is that it is a conviction, so I couldn't claim financial loss for the $200,000 I spent on legal expenses appealing the revocations and defending myself in the criminal case when I sued for the privacy act violation. The Federal District Court ruled that the government agencies had violated the privacy act multiple times during the investigation, but because I had claimed no financial loss and federal appeals courts had ruled differently on whether the term "actual damage" in the privacy act included proven mental and emotional distress over embarrassing intentional public revelation of confidential information such as medical records by government agencies, and the 9th Circuit hadn't ruled on the question, the court had to find for the government (Doctrine of Sovereign Immunity, a legacy of English law). The 9th Circuit three judge panel ruled unanimously that of course mental and emotional distress was actual damage since in the great majority of privacy act cases, mental and emotional distress over the wilful and intentional public release of embarrassing confidential information is the only damage. The government appealed to the 9th Circuit for a rehearing en banc, but the court rejected it. That left the government with only one option: The Supreme Court. The decision was written by Justice Alito, joined by Roberts, Scalia, Thomas and Kennedy. A powerful dissent was written by Justice Sotomayor joined by Ginsburg and Breyer. Kagan recused because she had been Obama's solicitor general when my case was before the 9th Circuit.

    If anyone is interested, I put together a PowerPoint presentation on the whole fiasco, and can email a pdf of it. PM me with your email address if you'd like a copy. I'm also writing a book about it.
     
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  13. Brad Z

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  14. PeterNSteinmetz

    PeterNSteinmetz Cleared for Takeoff

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    This is one reason we have trial by jury in the Constitution. To nullify ridiculous laws.

    Sounds like the answer to the OP is, the Federal government has not been able to obtain a conviction by a judge or jury in this type of case. But of course can make your life hell by the mere indictment.
     
    Last edited: Jun 19, 2019
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  15. bbchien

    bbchien Touchdown! Greaser!

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    The “four Delta captains indicted” are meant as example fish to fry and are a warning to all pilots and to third class pilots. I can smell the fish frying.....
     
  16. Isosceles

    Isosceles Pre-Flight

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    I will be interesting to see how that plays out in the liberal San Francisco court... You can get away with a murder here!
     
  17. midlifeflyer

    midlifeflyer Touchdown! Greaser!

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    Intentional "no" answers to a medical application question which should have been answered "yes" typically result in the revocation of the medical certificate and enforcement action to revoke the pilot certificate.

    Yes, that applies to private pilots with third class medical certificates as well as to the "big boys." BTDT.

    In terms of criminal prosecution, it's rare at the personal flight level. It's about priorities. These cases come involve a referral from the FAA to the Justice Department. Justice has more important things to do than prosecute Joe Pilot who lied on his third class application and is now grounded. In the commercial world, we're talking the higher level of regulation, public passenger safety, all the things which are either important or "hot."
     
    Last edited: Jun 19, 2019
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  18. Witmo

    Witmo Pattern Altitude

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    What did the Supreme Court rule? I missed it.
     
  19. midlifeflyer

    midlifeflyer Touchdown! Greaser!

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    @Witmo, The SCOTUS ruled that the Privacy Act's waiver of sovereign immunity applied only to provable damages for actual pecuniary losses. "Special damages" in the lingo, which is roughly defined as measurable and provable monetary losses such as medical bills, costs to repair damaged property, and lost earnings, as opposed to pain and suffering, embarrassment, and the like.
    Here's the case if you are interested in reading it. FAA v. Cooper.
     
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  20. Stan Cooper

    Stan Cooper Cleared for Takeoff

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    Right. I'd like to add that following the SCOTUS decision, Senator Daniel Akaka (D-HI) proposed an amendment to the privacy act as part of the Cybersecurity Act of 2012 (S. 3414). As Senator Akaka noted in a press release dated August 3, 2012:

    Senator Akaka's amendment was filibustered by Senate Republicans.
     
  21. mryan75

    mryan75 Cleared for Takeoff

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    Lesson learned? DON'T LIE ON YOUR MEDICAL.
     
  22. mryan75

    mryan75 Cleared for Takeoff

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    I may be being unfair to you. Let me ask: so you never flew while on disability, and didn't falsify your medical application in any way?
     
  23. mryan75

    mryan75 Cleared for Takeoff

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    Ah, okay, there was indeed a falsification. So I go back to my statement: don't lie on your medical and they won't revoke it.

    Edit: not one falsification, but repeated falsifications. Now I remember why I offered him the world's smallest violin in another thread.
     
  24. Tantalum

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    What was the outcome? I would have assumed that you forego some HIPPA rights, etc., through some kind of "police power" or other government law

    That's how I read it, but the database scrub flagged him and so down the hole he went. What I wonder is, if nothing "wrong" actually was done, then why all the legal hassle afterwards, unless it was just for the privacy violation.. although I thought I read on PoA on one of the other "what happens if I lie threads" that somewhere in the FAA there's fine print that you forego your HIPPA rights..

    At any rate... I think the lesson is just don't lie!

    I actually got very paranoid about this and had Blue Cross send me all my medical visits, etc., to make sure I cross checked them all and then consulted with the recommended AME and my CFI at the time. I have been told in the past that doctor visits for common colds, routine visits, etc., and certain types of counseling, like marriage counseling, need not be disclosed if they're not for substance abuse and psychiatric issues.. reading about question 18 and 19 here: https://www.faa.gov/about/office_or...ces/aam/ame/guide/media/applicant history.pdf that seems to make sense.. and question 18 is broken down in a very detailed manner.. frankly, what's the harm in writing on question 19 "went to dr.John Smith for visit, had flu, recovered one week later, no long term effects" .. are people that terrified that they'll be denied a medical for something like that?
     
  25. JOhnH

    JOhnH Touchdown! Greaser! PoA Supporter

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    Well, some people can.
     
  26. brcase

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    I think they are more terrified that they will get their medical revoked or a certificate action for forgetting that they saw the doctor for the flu.

    Or maybe more realistically they are afraid if they put they went to the ER for chest pain that was determined to be “due to unknown cause” that they will then be required to spend thousands of dollars to prove to the FAA that they are fit to fly.

    Brian
     
  27. Isosceles

    Isosceles Pre-Flight

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    Well, the takeaway is... never go to ER for chest pain.
     
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  28. Tantalum

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    ..and that's the unintended consequences with many of these rules that are meant to help and protect us

    I bet there are many people who don't go the doctor strictly for fear of what will be found and potentially be disqualifying
     
  29. Stan Cooper

    Stan Cooper Cleared for Takeoff

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    There's the rub.

    I didn't renew my medical certificate for years following my 1985 HIV diagnosis because I knew the FAA had concerns about the virus crossing the blood brain barrier causing what was called "AIDS Dementia." However, as late as 1999, the MCSPT for AMEs stated categorically "Applicants who are Human Immunodeficiency Virus (HIV) positive who have not had symptoms and are not on medication, even for prophylactic use, are eligible for certification. Once they are on medication, or show symptoms of Acquired Immune Deficiency Syndrome (AIDS) related diseases, they will NOT be considered for certification."

    So, there was a choice: not take my lifesaving medications and die, or take my medications and live, but according to the MCSPT not be able to obtain a medical certificate.

    In 1997, after I had been on the HAART cocktail of medications and off disability for a year, and my viral load was undetectable, my CD4+ cell count was normal, liver, kidneys, blood pressure, cholesterol, and other blood work parameters were normal, I read that the FAA was issuing special issuance medical certificates for HIV infected pilots on antiretroviral medications. I called the Western-Pacific regional FAA office in Los Angeles and was told that in order to qualify, I'd have to send all of my medical records for the past ten years to CAMI, and in 9 months to a year they'd get back to me and let me know if I qualified. I specifically asked what the medical criteria were to qualify, and was told that was confidential information not available to the public.

    With the conflicting information of what was still being published in the MCSPT on one hand and the tepid acknowledgement that it might be possible to get a special issuance on the other hand, I feared that I might be arbitrarily disqualified. So yes, I lied on three successive 3rd class medical applications. I acknowledged that in my interview with the DOT-IG special agents who presented me with the emergency order of revocation in March, 2005. Coincidentally, I had recently come across a PowerPoint presentation by Quay Snyder of Virtual Flight Surgeons that contained the medical criteria for the FAA HIV protocol along with a letter from Warren Silberman, D.O., then the Manager of the Aerospace Medical Certification Division, encouraging HIV infected pilots who had previously concealed their infection "to reveal previously unreported medical conditions, including HIV seropositivity, to the AMCD on future Airman Medical Certificate applications. Pilots are encouraged to report these conditions and their treatment at the earliest possible date and on all future applications.

    Concerns about adverse administrative and medical certification actions for previous concealment of the medical conditions are unjustified in the overwhelming majority of cases. My policy is not to report previous erroneous completions or falsifications of medical applications to the FAA Securities Division for enforcement actions if several conditions are met. These conditions include:

    1) Pilots initiate reporting of the condition themselves, through their Aviation Medical Examiner (AME) or other medical certification specialty services such as their union aeromedical advisors and independent services.

    2) Complete past medical information is revealed and FAA AMCD protocols for evaluation of specific medical conditions are documented to evaluate current medical status.

    3) There is no history of an aviation accident or incident, positive test for illegal substances or outside report of compromised aviation safety as a result of the previously unreported medical condition.

    Medical certification determinations are made on the basis of the pilots’ current medical status based on complete evaluations and documentation. Periodic evaluation and reporting of medical conditions is required for continued certification. Deterioration of medical conditions or adverse effects of treatment may result in loss of medical certification until the medical status improves.

    Information regarding a pilot’s falsification of a medical application that is reported as a result of discovery following an aircraft mishap, or by anonymous reports through the FAA "Hot Line" for possible pilot violations of the Federal Aviation Regulations, does not have the same protection from adverse actions against the pilot’s medical and/or pilot certificates.


    The AMCD has worked closely with the Aviation Medicine Advisory Service and Virtual Flight Surgeons to expedite processing of HIV seropositive pilots’ petitions for Special Issuance Authorizations for medical certification. The importance of providing complete information for review can not be over overemphasized in the AMCD’s ability to rapidly process medical applications. I encourage pilots to engage the assistance of experienced aviation medicine specialists when reporting complex medical conditions and administratively sensitive cases."

    I met the S.I. criteria for special issuance (with the exception of taking the CogScreen-AE) in 1997, and have met them ever since. As part of the recertification, I took the CogScreen and scored in the 50th to 95th percentile on the Taylor Aviation tests normed against ATPs employed by U.S. carriers 3 to 8 years younger than I.

    I was in the process of preparing my medical records to self-report in order to afford myself of the proffered protection from adverse actions when I received the call from the DOT-IG investigators to meet with them about "irregularities in my FAA medical certification." I met with them the following morning and they presented me with the revocation order. I immediately surrendered my airman and medical certificates.

    I showed them a copy of Dr. Silberman's letter, but they were unmoved. Too late. Of course it's OK for them to violate the law.

    The rest is history.
     
    Last edited: Jun 19, 2019
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  30. Stan Cooper

    Stan Cooper Cleared for Takeoff

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    I wonder if the OP got his answers.

    FWIW, here's the breakdown of pilots by type of airman certificate indicted during Operation Safe Pilot:

    Air Transport Pilot – 4
    Commercial Pilot – 6
    Private Pilot – 28 (including 2 board-certified medical doctors)
    Student Pilot – 7
     
  31. Tantalum

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    Holy crap man... thanks for discussing all that, you've had an extensive journey.. I wish fair skies sir!
     
  32. Tantalum

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    This seems draconian... do we know what the full issues found were? Was it "mild" stuff like omitting a common cold, more serious like omitting a hospitalization (but for something minor like an appendix), or where they severe disqualifying items like mental illness diagnoses, alcohol dependence, etc.

    I also have to think, going after a student... did the CFI and the AME give no guidance to the students? Maybe I've been lucky but my CFI and AME have always been great counselors
     
  33. Stan Cooper

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    We don't know exactly how serious the issues were, but we do know that those indicted (including yours truly) were "the most egregious" violators, and that if the U.S. Attorney had more resources "hundreds more could have been indicted and prosecuted."

    Why was I one of the most "egregious violators?" I don't have a clue. In thousands of hours of flying as PIC, I have never been involved in an accident, incident, or had a deviation. It was clearly because I had HIV infection and failed to disclose it. I am ashamed that I lied, and accepted the consequences.

    But the real question is why were government lawyers allowed to lie in sworn declarations during the criminal prosecutions about the purpose of Operation Safe Pilot, claiming it was to simply to verify that pilots were who they said they were in the post 9/11/2001 environment, but discovered during the investigation that some pilots were collecting SSA disability benefits. They claimed this discovery was "ancillary to SSA-OIG's original intent", but discovery during the civil suit clearly showed that the purpose of Operation Safe Pilot was to identify (illegally) airmen who had falsified their medical certificate applications, and these same lawyers had signed off on that purpose of the investigation. Why were these lawyers, who presumably knew better, allowed to escape prosecution for perjury?

    Sadly, there are liars in government from the very top down. As Justice Louis Brandeis said in 1928:

    "Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously.

    Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means – to declare that the Government may commit crimes in order to secure the conviction of a private criminal –would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face."

    The central question raised by Operation Safe Pilot is should government agents who willfully and intentionally violate laws they have sworn to uphold be held accountable for their violations?
     
    Last edited: Jun 19, 2019
  34. bbchien

    bbchien Touchdown! Greaser!

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    The central lesson is, lie repeatedly at your own peril, 3rd class. At least club fed was not involved..:(
     
  35. Stan Cooper

    Stan Cooper Cleared for Takeoff

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    True, Bruce, but at nearly a quarter of a million dollars and lots of personal embarrassment, the cost was very high.
     
  36. 3393RP

    3393RP Pattern Altitude

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    It's wonderful that you, and many like you, are now living normal lives. The 1980s were dark days for many.
     
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  37. Stan Cooper

    Stan Cooper Cleared for Takeoff

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    Thank you; yes it's wonderful, but decades later I still have survivor's guilt. In the eighties and early nineties I was going to as many as three funerals a week. These were close friends, not just acquaintances. They were very dark days.
     
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  38. Palmpilot

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  39. midlifeflyer

    midlifeflyer Touchdown! Greaser!

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    Too bad about the survivor's guilt, Stan. It is a terrible burden. Objectively it is meaningless, but I have friend who know the pain is all too real.

    And don't expect sympathy from too many quarters. To many, the disparity in consequences between lying to the government and the government lying is perfectly OK.
     
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  40. Kenny Phillips

    Kenny Phillips En-Route

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    In 1991 my brother succumbed to AIDS. Just a few years later, survival was the norm.
     
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