United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 6, 2009 Decided December 8, 2009 

No. 08-1390 

JACK RONDAL DILLMON, 

PETITIONER

v. 

NATIONAL TRANSPORTATION SAFETY BOARD, ET AL., 

RESPONDENTS

On Petition for Review of an Order 

of the National Transportation Safety Board 

Weldon E. Patterson 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 

respondent. 

Before: GARLAND, BROWN and GRIFFITH, Circuit Judges. 

 Opinion for the Court filed by Circuit Judge BROWN. 

BROWN, Circuit Judge: Petitioner Jack Rondal Dillmon 

accuses the National Transportation Safety Board (Board) of 

hypocrisy—saying one thing while doing another. Dillmon 
2 

argues the Board departed from its prior decisions without 

adequate explanation when it affirmed the Federal Aviation 

Administration’s (FAA’s) emergency revocation of his 

airman and medical certificates. We agree with Dillmon: the 

Board has failed to exhibit the reasoned decision making we 

require of agencies. We therefore grant his petition for 

review. 

I 

On February 26, 1997, a jury convicted Dillmon of ten 

counts of bribery of a public servant, a felony in the state 

where he was prosecuted. A month later, on March 28, 1997, 

Dillmon submitted to the FAA an application for a Third 

Class Medical Certificate. In filling out the medical 

application, Dillmon had to answer “Yes” or “No” to 

Question 18w, which asked whether he had any “[h]istory of 

nontraffic conviction(s) (misdemeanors or felonies).” FAA 

Form 8500-8 (7-92). Despite his recent felony bribery 

conviction, Dillmon answered “No.” In signing the form, 

Dillmon certified his answers were “complete and true to the 

best of [his] knowledge.” Id. On May 2, 2007 and March 17, 

2008, Dillmon again filled out the application to renew his 

medical certificate. Each time he filled out the application, he 

answered Question 18w “No.” 

In August 2008, the FAA Acting Administrator issued an 

emergency order revoking Dillmon’s medical certificate, as 

well as his private pilot certificate. The order explained the 

Administrator had concluded Dillmon’s answers to Question 

18w in 1997, 2007 and 2008 violated Federal Aviation 

Regulation (FAR) provision 14 C.F.R. § 67.403(a)(1), which 

states: “No person may make or cause to be made . . . [a] 

fraudulent or intentionally false statement on any application 

for a medical certificate.” Dillmon appealed the order to the 
3 

Board and requested a hearing to challenge the FAA’s 

findings. 

At an October 2, 2008 hearing before an administrative 

law judge (ALJ), the FAA submitted evidence of Dillmon’s 

bribery conviction and his “No” answers to Question 18w on 

his 1997, 2007 and 2008 medical applications. After the 

FAA’s presentation of evidence, the ALJ denied Dillmon’s 

motion to dismiss and ruled the FAA had made out a prima 

facie case for the regulatory offense of intentional falsification 

under FAR section 67.403(a)(1). The ALJ then allowed 

Dillmon to present evidence and testify in his defense. 

Dillmon explained why he had answered “No” to 

Question 18w. He said, “I have always believed and have 

always understood . . . any time this question has ever come 

up was that all [the FAA was] interested in was anything to do 

with drugs or alcohol.” Hearing Tr. at 56–57 (Oct. 2, 2008). 

Dillmon described how the FAA’s Aviation Medical 

Examiner (AME) had first informed him of this in 1990. Id. 

at 57, 76–77. He testified another AME, Dr. Van Den Berg, 

similarly advised him in 2007 and 2008 that Question 18w 

was only concerned with drug- or alcohol-related offenses. 

Id. at 66, 85–86. Dillmon submitted two letters from Dr. Van 

Den Berg to corroborate his testimony about their 

conversations in 2007 and 2008. Dillmon emphasized, “I 

never would have checked no if this was not the advice I was 

given by the designated examiner that helped me complete the 

form.” Id. at 66. Finally, he testified he was “painfully aware 

[his] life [was] an open book when it comes to a criminal 

conviction,” and he was “not proud of it,” but it was “not 

something [he] would lie about or try to hide.” Id. at 66–67. 

On cross-examination by the FAA, Dillmon conceded he 

had never read the portion of the medical application which 
4 

provided instructions for completing Question 18w until the 

day before the hearing. Hearing Tr. at 79. The instructions 

stated, “Letter (w) . . . asks if you have ever had any other 

(nontraffic) convictions (e.g., assault, battery, public 

intoxication, robbery, etc.). If so, name the charge for which 

you were convicted and the date of conviction in the 

EXPLANATIONS box.” FAA Form 8500-8 (3-99). He also 

admitted that when he filled out the applications in 1997, 

2007 and 2008, he “knew [he] had been convicted of a nontraffic offense.” Id. at 86–87. Finally, when asked by the 

ALJ how he would answer Question 18w “today,” Dillmon 

said, “Absolutely yes.” Id. at 88. 

After the hearing, the ALJ issued his decision. He noted 

the central question was, “What is in the man’s mind?” 

Hearing Tr. at 130. Of particular importance to the instant 

petition, the ALJ found Dillmon to be a credible witness: “My 

determination is that [Dillmon] was quite forthright and 

candid in his testimony. To me, there is quite a notable 

absence of any indication of an intentional falsehood . . . 

when he signed the no to these questions in the three 

applications in question 18W.” Id. at 132. In light of 

Dillmon’s testimony and the documentary evidence he 

submitted, the ALJ ruled Dillmon had successfully rebutted 

the Administrator’s prima facie case of intentional 

falsification, concluding, “[I]t is clear to me that there’s no 

intention on the part of [Dillmon] to falsify, let alone be 

fraudulent in setting forth the answers that he did to this 

question, 18W.” Id. at 133. The ALJ therefore reversed the 

FAA’s emergency revocation order. 

The FAA appealed the ALJ’s decision to the Board, 

which reversed the ALJ based on two purported errors. 

Administrator v. Dillmon, NTSB Order No. EA-5413, 2008 

WL 4771937, at *4 (Oct. 28, 2008). First, the Board 
5 

concluded the ALJ erred in determining Dillmon had 

successfully rebutted the Administrator’s prima facie case of 

intentional falsification. Id. Relying on several prior 

decisions, the Board rejected Dillmon’s argument that he did 

not make an intentionally false statement because he believed 

Question 18w was only concerned with alcohol and drug 

convictions. Second, the Board determined the ALJ erred by 

requiring the Administrator to prove Dillmon had the specific 

intent to deceive the FAA, rather than the lesser burden of 

proving intent to falsify. Id. The Board therefore reversed 

the ALJ and affirmed the FAA’s emergency revocation order. 

Dillmon petitioned this court to review the Board’s decision. 

II 

We are bound by the Administrative Procedure Act when 

we review the Board’s decisions. See Chritton v. NTSB, 888 

F.2d 854, 856 (D.C. Cir. 1989). Under 5 U.S.C. § 706(2)(E) 

and 49 U.S.C. § 44709(f), we adopt the agency’s factual 

findings as conclusive if supported by substantial evidence. 

The agency’s factual findings “may be supported by 

substantial evidence even though a plausible alternative 

interpretation of the evidence would support a contrary view.” 

Chritton, 888 F.2d at 856. We also must consider whether the 

agency action is “arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law.” 5 U.S.C. § 

706(2)(A). In evaluating agency action under this standard, 

we “defer to the wisdom of the agency, provided its decision 

is reasoned and rational, and even ‘uphold a decision of less 

than ideal clarity if the agency’s path may reasonably be 

discerned.’” Chritton, 888 F.2d at 856 (quoting Bowman 

Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 

281, 286 (1974)). 
6 

Nevertheless, we have held that where an agency departs 

from its precedent, it must do so by “reasoned analysis.” 

Ramaprakash v. FAA, 346 F.3d 1121, 1124–25 (D.C. Cir. 

2003); see Motor Vehicle Mfg. Ass’n of United States, Inc. v. 

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57 (1983) (“[A]n 

agency changing its course must supply a reasoned 

analysis.”). As the Supreme Court recently explained, the 

APA does not impose a heightened standard of review upon 

an agency to justify its departure from precedent. FCC v. Fox 

Television Stations, Inc., 129 S. Ct. 1800, 1810–11 (2009). 

To the contrary, an agency “is free to alter its past rulings and 

practices even in an adjudicatory setting.” Airmark Corp. v. 

FAA, 758 F.2d 685, 691–92 (D.C. Cir. 1985). But we do 

require the agency to “display awareness that it is changing 

position” and not to “depart from a prior policy sub silentio or 

simply disregard rules that are still on the books.” Fox 

Television, 129 S. Ct. at 1811. This permits us to ensure the 

agency’s “prior policies and standards are being deliberately 

changed, not casually ignored.” Ramaprakash, 346 F.3d at 

1125. Reasoned decision making, therefore, necessarily 

requires the agency to acknowledge and provide an adequate 

explanation for its departure from established precedent. See 

Fox Television, 129 S. Ct. at 1811 (“[T]he agency must show 

that there are good reasons for the new policy.”). Applying 

the corollary of this requirement, “agency action is arbitrary 

and capricious if it departs from agency precedent without 

explanation.” Ramaprakash, 346 F.3d at 1124. 

Dillmon argues the Board’s decision diverges from its 

precedent in two ways: first, by reversing the ALJ’s decision 

without addressing his credibility determination; and second, 

by applying an improper standard for the intent element of the 

offense of intentional falsification. We address these 

arguments in turn. 
7 

A 

Dillmon argues the Board departed from its precedent 

when it reversed the ALJ without addressing his credibility 

determination in Dillmon’s favor. The Board’s precedent 

unambiguously requires it to defer to its ALJs’ credibility 

determinations. As we have observed, “the Board’s policy is 

not to disturb a credibility finding unless there is a compelling 

reason or the finding was clearly erroneous.” Chirino v. 

NTSB, 849 F.2d 1525, 1529–30 (D.C. Cir. 1988) (internal 

quotations omitted) (affirming Board’s reversal of ALJ’s 

credibility finding in airman certificate revocation 

proceeding). Consequently, the Board “has overturned ALJ 

credibility determinations found to be inherently incredible or 

inconsistent with the overwhelming weight of the evidence.” 

Id. at 1530 n.6. 

This deferential standard of review stems from the 

function the ALJs perform in the adjudicative process: “As 

we have stated repeatedly, . . . the law judge sees and hears 

the witnesses, and he is in the best position to evaluate their 

credibility.” Daschle v. Taylor, NTSB Order No. EA-4509, 

1996 WL 738720, at *3 (Dec. 11, 1996); see also

Administrator v. Exousia, Inc., NTSB Order No. EA-5319, 

2007 WL 2825091, at *2 (Sept. 21, 2007) (“[O]ur prior 

decisions make clear that we defer to the credibility 

determinations of our law judges, who are in the position of 

observing live testimony and the demeanor of witnesses, 

unless shown to be clearly erroneous.”). Of relevance to 

Dillmon’s petition, the Board has directed its ALJs to assume 

this role in revocation proceedings for intentional falsification 

of medical applications: “[W]e think that . . . the task facing 

our law judges is essentially no different from any other 

adjudication in which a credibility assessment concerning an 

individual’s intent must be made.” Administrator v. 
8 

Barghelame, 7 N.T.S.B. 1276, 1276, 1991 WL 321289 (Nov. 

5, 1991). 

The Board’s adherence to this precedent has been 

unwavering. For instance, in Administrator v. Roarty, NTSB 

Order No. EA-5261, 2006 WL 3472333 (Nov. 21, 2006), the 

Board reviewed an ALJ’s determination that an airman had 

not intentionally falsified his medical application in violation 

of FAR section 67.403(a)(1). The ALJ had concluded the 

airman’s failure to disclose a prior revocation of his medical 

certificate when filling out the application was a negligent 

mistake, rather than an intentionally false answer. Id. at *2. 

On appeal, the Board noted, “[R]esolution of credibility 

issues, unless made in an arbitrary or capricious manner, is 

within the exclusive province of the law judge.” Id. The 

Board declared it “may not reverse the law judge simply 

because, on the appellate record, we might come to a different 

conclusion.” Id. (citing Chirino, 849 F.2d at 1530). Although 

the Board reviewed the evidence from the hearing and 

speculated the airman might have intentionally falsified the 

answer, it was “constrained” to uphold the ALJ’s decision 

because it had “no basis to characterize the law judge’s 

credibility determination in favor of respondent [as] arbitrary 

or capricious.” Id. 

Turning to Dillmon’s petition, we are unable to reconcile 

the Board’s decision with its precedent concerning its review 

of an ALJ’s credibility determination. There is no question 

the ALJ made an explicit credibility finding in Dillmon’s 

favor. See Hearing Tr. at 132 (“My determination is that 

[Dillmon] was quite forthright and candid in his testimony.”). 

Dillmon’s credibility was a central issue at the hearing. In 

concluding Dillmon had rebutted the FAA’s prima facie case, 

the ALJ relied heavily on Dillmon’s testimony about what he 

thought Question 18w meant and about his conversations with 
9 

the AME Dr. Van Den Berg in 2007 and 2008. But when it 

reversed the ALJ, the Board did not even acknowledge he had 

made a credibility finding. 

The Board’s silence on this pivotal factual issue leaves us 

unable to determine whether it acted consistent with its 

precedent. See, e.g., Exousia, NTSB Order No. EA-5319, at 

*2; Chirino, 849 F.2d at 1529–30. Its silence is particularly 

troubling here because, as in Roarty, the ALJ who presided 

over Dillmon’s hearing believed his testimony. Cf. Roarty, 

NTSB Order No. EA-5261, at *2. In Roarty, the Board 

expressed skepticism about the airman’s defense but admitted 

it was “constrained” by precedent to affirm the ALJ’s 

decision. Id. The facts in Roarty appear indistinguishable 

from the circumstances in Dillmon’s case, and the Board has 

not offered an explanation for these conflicting results. If a 

compelling reason for refusing to believe Dillmon and 

rejecting the ALJ’s credibility assessment exists, the Board 

has not revealed it to us. Because the Board departs from its 

precedent without adequate explanation, its decision reversing 

the ALJ without overturning his credibility determination is 

arbitrary and capricious. See Ramaprakash, 346 F.3d at 

1124–25; see also Andrzejewski v. FAA, 563 F.3d 796, 800 

(9th Cir. 2009) (holding the Board’s “failure to give the ALJ’s 

implicit credibility determination the requisite level of 

deference was contrary to [the Board’s] precedent and, 

therefore, arbitrary and capricious”).

The FAA essentially concedes the Board deviated from 

its precedent when it argues, “To the extent in so reversing the 

ALJ, the Board implicitly overturned any of his credibility 

determinations, the substantial evidence in the record 

establishes that the [Board] had the requisite basis to do so 

under the foregoing standard.” FAA Br. at 50 (emphasis 

added). The FAA thus admits the Board failed to explicitly 
10 

overturn the ALJ’s credibility determination but asserts we 

should nevertheless interpret its decision to encompass this 

result. The FAA’s overturning-by-implication argument is 

itself inconsistent with the Board’s precedent. Moreover, if 

the Board were permitted to overturn the ALJ’s credibility 

finding implicitly, we still would be unable to ascertain 

whether the Board reviewed the finding under the appropriate 

standard or simply ignored it. See Fox Television, 129 S. Ct. 

at 1811 (an agency must “display awareness that it is

changing position” and not “depart from a prior policy sub 

silentio or simply disregard rules that are still on the books”). 

If we accepted the FAA’s argument, we would have to 

assume the Board had engaged in reasoned decision making 

without confirming it actually did. This extreme level of 

deference is not sanctioned by the APA nor our precedent. 

The FAA offers two reasons why we should not vacate 

the Board’s order. First, the FAA argues the standard of 

review we should apply to the Board’s decision is found in 

Singer v. Garvey, 208 F.3d 555 (6th Cir. 2000). There the 

court noted, “Where the [Board] reverses its ALJ, this court’s 

role is limited to determining whether those factors which 

influenced the ALJ should have required the [Board] to reach 

a decision different from the one it did.” Id. at 558. It is 

unclear to us precisely what Singer meant by this statement, 

but whatever it meant, the FAA appears to have taken it out of 

context. Our role is not “limited” in the manner suggested by 

this single sentence; we review the Board’s decisions under 

the standards established by the APA, not according to the 

factors relied on by the ALJ. Singer acknowledges the proper 

standard of review in the paragraph prior to the one from 

which the FAA quotes. See id. (“This court may set aside 

agency action only if it finds it to be arbitrary, capricious, an 

abuse of discretion, or, where there has been a hearing, the 

agency action is unsupported by substantial evidence.”). 
11 

In any event, Singer, while not controlling, is consistent 

with our holding today. The airman in Singer had argued the 

Board departed from precedent by overturning a statement by 

the ALJ that the airman contended was a credibility finding. 

Id. The court rejected this argument by noting the Board had 

“specifically addressed the ALJ’s statement . . . and 

concluded that it did not amount to a credibility finding.” Id. 

The court concluded the Board’s action was consistent with 

its precedent because it had properly interpreted the ALJ’s 

statement as a legal conclusion rather than a factual finding 

based upon the witness’s reliability. Id. at 559 (“The ALJ did 

not render a credibility determination.”). As noted above, the 

ALJ’s statement about Dillmon’s testimony clearly 

constituted a credibility determination. Singer therefore does 

not resolve the question raised by Dillmon’s petition, and the 

FAA’s reliance on it is misplaced. 

Second, the FAA argues the substantial evidence in the 

record provided the Board with the requisite basis for 

overturning the ALJ’s credibility determination, and, because 

the Board’s decision is supported by substantial evidence, it 

therefore should be affirmed. The flaw in the FAA’s 

argument is that the Board does not cite this same basis for 

reversing the ALJ. Instead, the Board reversed the ALJ 

purportedly because he erred by departing from the Board’s 

precedent in two respects—an explanation we will explore 

below. However, even if the ALJ had arbitrarily and 

capriciously departed from the Board’s precedent, this would 

not, by itself, vitiate his factual findings, including the 

credibility determination. The FAA’s substantial evidence 

argument is thus a thinly-veiled attempt to rehabilitate the 

Board’s decision by suggesting it reached the right 

destination, even though it chose the wrong path to get there. 

Although we will “uphold a decision of less than ideal 
12 

clarity,” we do this only “if the agency’s path may reasonably 

be discerned,” Chritton, 888 F.2d at 856 (quoting Bowman 

Transp., 419 U.S. at 286). The path the Board has taken is 

not the one now proposed by the FAA. We “may not accept 

appellate counsel’s post hoc rationalizations for agency 

action.” State Farm, 463 U.S. at 50. We therefore conclude 

the Board’s failure to address the ALJ’s credibility 

determination was arbitrary and capricious. 

B 

Dillmon’s second argument is that the Board departed 

from its precedent by applying an improper standard for the 

intent element of the offense of intentional falsification. The 

FAA revoked Dillmon’s certificates pursuant to FAR section 

67.403(a)(1), which prohibits an airman from making an 

“intentionally false statement.” This provision is similar to 

another FAA regulation reviewed by the Ninth Circuit in Hart 

v. McLucas, 535 F.2d 516 (9th Cir. 1976). There the Board 

affirmed the suspension of an airman’s flight instructor 

certificate for making false entries in his logbook in violation 

of FAR section 61.59(a)(2). Id. at 517–18. The ALJ 

concluded Hart had not acted fraudulently but had made 

intentionally false statements. Id. at 518. The Board affirmed 

the ALJ, noting it considered a statement to be intentionally 

false “if the entry is factually incorrect . . . and if the maker of 

the incorrect statement intends to make that statement.” Id. 

On appeal, the Ninth Circuit disagreed, explaining the 

regulation identified two partially overlapping offenses—one 

for fraud and the other for intentional falsification. The fraud 

offense required proof of five elements: “(1) a false 

representation (2) in reference to a material fact (3) made with 

knowledge of its falsity (4) and with the intent to deceive (5) 

with action taken in reliance upon the representation.” Id. at 
13 

519 (quoting Pence v. United States, 316 U.S. 332, 338 

(1942)). The court distinguished the offense of intentional 

falsification as “a lesser included offense” consisting of the 

first three elements of fraud: “falsity, materiality and 

knowledge.” Id. Rejecting the Board’s position, the court 

concluded the regulation included a scienter requirement that 

“must be construed to require actual knowledge of falsity.” 

Id. at 520. Thus, for the FAA to prove the offense of 

intentional falsification, “the person making the false entry 

must know of such falsity.” Id. at 519. Subsequently, the 

Board and the FAA have adopted and extended Hart’s threeprong standard to apply to the offense of intentional 

falsification under FAR section 67.403(a)(1), the regulation at 

issue in Dillmon’s petition. See Roarty, NTSB Order No. 

EA-5261, at *2 (“The test to be applied to determine whether 

a statement is intentionally false is found in Hart . . . , which 

states that the elements of intentional falsification are: 1) a 

false representation; 2) in reference to a material fact; and 3) 

made with knowledge of its falsity.”); FAA Br. at 25 (noting 

the FAA’s agreement that intentional falsification is proven 

via Hart’s three-prong standard). 

In his brief, Dillmon does not assert the Board 

completely ignored the intent element. Indeed, the Board 

acknowledged Hart’s three-prong standard in its decision 

affirming the FAA’s revocation of his airman and medical 

certificates. See Dillmon, NTSB Order No. EA-5413, at *3. 

Instead, Dillmon contends the Board departed from its 

precedent by allowing the FAA to prove his intent by 

satisfying the lesser burden of showing negligence (he should 

have known his answer was false) rather than knowledge (he 

knew his answer was false). See Petitioner’s Br. at 18. 

Despite the ALJ’s finding to the contrary, the Board 

concluded Dillmon had the requisite knowledge to satisfy the 
14 

intent element of FAR section 67.403(a)(1): “Overall, 

[Dillmon] clearly knew that he had been convicted of a nontraffic offense.” Dillmon, NTSB Order No. EA-5413, at *3. 

The Board reached this conclusion primarily relying on 

Dillmon’s statement during his hearing testimony that, when 

he filled out the medical applications, he “knew he had been 

convicted of a non-traffic offense.” Id. at *2. But there is a 

step missing in the Board’s reasoning. Dillmon’s statement 

establishes he was aware when he answered Question 18w 

that he had been convicted of felony bribery. Standing alone, 

however, this does not establish he knew his answer to 

Question 18w was false. Although Dillmon freely admitted 

he knew about the conviction, he also testified he understood 

Question 18w only required him to report drug- and alcoholrelated convictions. Hearing Tr. at 56–57 (“I have always 

believed and have always understood . . . any time this 

question has ever come up was that all [the FAA was] 

interested in was anything to do with drugs or alcohol.”). 

Dillmon’s testimony, as credited by the ALJ, was that he did 

not know his answers were false because of his mistaken 

interpretation of Question 18w. The question for this court 

then is whether Dillmon’s subjective understanding of the 

questions in the medical application is relevant to the offense 

of intentional falsification. The Board’s precedent establishes 

it is, and that is the FAA’s position as well. See Oral Arg. 

Recording at 13:40–14:06. 

The Board previously has stated it considers the airman’s 

subjective interpretation of the meaning of a question to be 

relevant: “The law judge correctly noted that the third 

requirement of an intentional falsification charge is that the 

statements must have been made ‘with knowledge of their 

falsity.’ Therefore, his finding on this element necessarily 

hinged on respondent’s understanding of what information the 

question was intended to elicit.” Administrator v. Reynolds, 
15 

NTSB Order No. EA-5135, 2005 WL 196535, at *4 (Jan. 24, 

2005). Reynolds appears to require the FAA to prove the 

airman subjectively understood what the question meant. Id. 

Having announced this interpretation of the intent element in 

Reynolds, the Board was obligated to apply it consistently. 

See Ramaprakash, 346 F.3d at 1124. 

Returning to Dillmon’s petition, the Board diverged from 

its precedent by refusing, without adequate explanation, to 

accept his testimony that he subjectively thought Question 

18w did not require him to report his felony bribery 

conviction. Furthermore, Dillmon’s defense was based, in 

part, on his claim the AMEs told him what Question 18w 

meant, and he relied on that advice. Thus, before the Board 

could discount Dillmon’s defense, it should have addressed 

the role of the FAA’s AMEs in the application process. See

Oral Arg. Recording at 20:46–21:20 (agreement by FAA 

counsel that AME’s advice is relevant to airman’s intent); cf.

Administrator v. Culliton, NTSB Order No. EA-5178, 2005 

WL 2477522, at *2 (Sept. 30, 2005) (rejecting airman’s 

argument that he had relied on AME for advice on how to fill 

out medical application). 

The Board reversed the ALJ on the ground he 

erroneously departed from its precedent in two respects. 

However, we conclude it was the Board, not the ALJ, that 

applied precedent incorrectly. The first error the Board 

identified was that the ALJ improperly accepted Dillmon’s 

defense about his understanding of Question 18w. Dillmon, 

NTSB Order No. EA-5413, at *4. The Board explained it 

rejected Dillmon’s argument because it had stated in 

Administrator v. Boardman, NTSB Order No. EA-4515, 1996 

WL 748190, at *1 (Dec. 20, 1996), that an airman’s failure to 

carefully consider a question before providing an answer did 

not establish a lack of intent and because it had stated in 
16 

Administrator v. Sue, NTSB Order No. EA-3877, 1993 WL 

157467, at *2 (April 28, 1993), that Question 18w was “not 

confusing to a person of ordinary intelligence.” Dillmon, 

NTSB Order No. EA-5413, at *4. 

The Board’s reliance on Boardman and Sue to reject 

Dillmon’s defense is misplaced. Dillmon testified about what 

he subjectively believed Question 18w required him to 

disclose. Reynolds establishes the relevance of Dillmon’s 

subjective understanding, and neither Boardman nor Sue

contradicts this principle. Boardman stands for the 

proposition that the airman must read the question carefully 

before answering it. Dillmon appears to have done so here—

he testified he discussed Question 18w with the AME on three 

occasions. Sue stands for the proposition that the questions 

on the medical application are not inherently too vague to 

support a finding of intentional falsification. But even in Sue, 

the Board relied on the ALJ’s finding that the airman “did 

know . . . that what they were asking on the form he should 

have said yes to.” Sue, NTSB Order No. EA-3877, at *1. 

The second error the Board identified was that the ALJ 

departed from precedent by requiring the FAA to prove 

Dillmon had the specific intent to deceive the Administrator 

when he answered Question 18w. Dillmon, NTSB Order No. 

EA-5413, at *4. The Board claimed the ALJ contravened its 

decision in Administrator v. McGonegal, NTSB Order No. 

EA-5224, 2006 WL 1466922 (May 25, 2006). In 

McGonegal, the Board reversed the ALJ after concluding the 

ALJ had erroneously articulated the Administrator’s burden 

of proof “at least eight times” with no indication he had 

applied the correct standard. Id. at *4. Here, by contrast, the 

Board has not identified a single instance where the ALJ 

misarticulated the burden of proof. In any event, our review 

of the ALJ’s decision leads us to conclude he properly 
17 

distinguished between knowledge of falsity and intent to 

deceive. 

We conclude with a caution. Although we hold the 

Board departed from its precedent in two respects, we do not 

suggest the Board must reinstate Dillmon’s medical and 

airman certificates. On remand, the Board still must decide 

whether the ALJ’s decision in Dillmon’s favor was correct. 

Under its precedent, the Board may reverse the ALJ’s 

credibility determination, so long as it does so pursuant to the 

appropriate standard of review. The Board may even modify 

this standard, but only if it does so by reasoned decision 

making. Furthermore, the Board is entitled to weigh the 

evidence and make factual determinations different from 

those made by the ALJ, if supported by substantial evidence. 

Finally, the FAA may revisit its interpretation of the intent 

element of FAR section 67.403(a)(1) and decide it rejects the 

airman’s subjective interpretation of the questions in the 

medical application. See Garvey v. NTSB, 190 F.3d 571, 577 

(D.C. Cir. 1999) (“[L]ike the [Board], we must defer to the 

FAA’s interpretations of its own aviation regulations.”); but 

cf. Alaska Prof’l Hunters Ass’n, Inc. v. FAA, 177 F.3d 1030, 

1034 (D.C. Cir. 1999) (“When an agency has given its 

regulation a definitive interpretation, and later significantly 

revises that interpretation, the agency has in effect amended 

its rule, something it may not accomplish without notice and 

comment.”). But because the Board departed from its 

precedent without reasoned explanation, we grant the petition 

for review, vacate the order, and remand for further 

proceedings. 

So ordered.