The Honorable Michael J. Melloy, Chief Judge, United States District Court for 1

the Northern District of Iowa, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-2740

___________

Stephen D. Summers, *

*

Petitioner, * Petition for Review of a Final

* Order from the National

v. * Transportation Safety Board.

*

David R. Hinson, Administrator, *

Federal Aviation Administration, *

*

Respondent. *

___________

Submitted: February 14, 1997

Filed: August 8, 1997

___________

Before HANSEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and

MELLOY, District Judge. 1

___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Stephen D. Summers appeals a decision of the National Transportation Safety

Board (the "Board") reversing an administrative law judge's (ALJ) holding, and

upholding the FAA Administrator's order revoking his Airman Certificate because he

falsified an application for a medical certificate. The Administrator held that
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Mr. Summers had responded untruthfully when he replied in the negative to two

questions, one asking him whether he had "ever had ... [m]ental disorders of any sort"

(emphasis in original), including depression, the other inquiring whether he had visited

any health professionals for evaluation within the three years immediately preceding

the application. It was undisputed that only two weeks before he completed his

application Mr. Summers had been interviewed by Dr. Kenneth MacDonald, a clinical

psychologist, at his lawyer's office and that Dr. MacDonald had later diagnosed him as

suffering from depression with suicidal ideation. Mr. Summers testified before the ALJ

that he did not know of this diagnosis until after he filled out his application, and

Dr. MacDonald testified that he did not recall relaying the diagnosis to Mr. Summers

before that time.

I.

We note, first, that in order to be in violation of the relevant regulation, 14

C.F.R. § 67.20(a)(1), Mr. Summers would have had to have made a "fraudulent or

intentionally false statement" on his application. The Board determined that

Mr. Summers had indeed intentionally made a false statement because, contrary to

Mr. Summers's testimony at the hearing before the ALJ, he had actually learned of

Dr. MacDonald's diagnosis before he filled out his application.

Mr. Summers has two complaints about this finding. First of all, he says, it

cannot stand under the standard of review applicable to an ALJ's factual findings that

the Board has established for itself, a standard that requires it to accept a finding of fact

unless the finding was clearly erroneous or there is a "compelling reason" to overturn

it. See Chirino v. National Transp. Safety Bd., 849 F.2d 1525, 1530 (D.C. Cir. 1988).

The difficulty with this argument is that the ALJ never made a finding as to whether

Mr. Summers knew about the results of his psychological evaluation at the relevant

time; the ALJ simply concluded generally that the Administrator had failed to make out

a case of intentional falsification, without any reference whatever to the testimony or

the applicable law.
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Mr. Summers's other objection to the Board's finding concerning his knowledge

of Dr. MacDonald's diagnosis is that it is not supported by the record, because the

Board's finding relied almost entirely on a letter that Mr. Summers wrote after this

proceeding was begun, a letter intended to explain why he answered the question about

mental disorders as he did. He said in the letter that he did not believe at the time that

he filled out the application that he was suffering from a mental disorder, because he

believed that his reaction to the stressful situations that he was then facing was entirely

normal. Indeed, he said in the letter, "Dr. MacDonald has told me that I was reacting

normally to these identifiable stressors." The Board seized on this last statement as

evidence that Mr. Summers was aware of Dr. MacDonald's diagnosis at the relevant

time.

We agree with Mr. Summers that this finding is not supported by substantial

evidence. Our reading of the letter is that Dr. MacDonald had at some time subsequent

to the application indicated to Mr. Summers that his reaction to his stressful situation

was normal. While we suppose that the Board's reading is not an impossible one, we

believe that it provides so weak an inference of Mr. Summers's knowledge that a

finding based on it is not supported by substantial evidence. That finding therefore

cannot stand. See 5 U.S.C. § 706(2)(E) and Owens v. National Transp. Safety Bd.,

734 F.2d 396, 398 (8th Cir. 1984).

The ultimate issue, moreover, is not when Mr. Summers learned of

Dr. MacDonald's diagnosis, because the question to which he stands accused of giving

an intentionally false answer did not ask him if he had been diagnosed as having

depression. It asked him instead if he had ever "had ... depression." We are unable to

see how it can reasonably be said that Mr. Summers's statement that he had never

suffered from depression was intentionally false unless he believed that he had in fact

suffered from depression when he made it. But Mr. Summers testified that, when he

answered the question, he did not believe that he had ever suffered from depression,

and the Board never found against him on that point. 
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The Board's observation in its decision that "at the very least ... the respondent

would have known ... that he had a problem with depression significant enough to

require reporting" misses the mark. As we have said, the question to which

Mr. Summers responded was not whether he had been diagnosed as having a mental

disorder including depression, but whether he had had a mental disorder. The diagnosis

is of course not irrelevant to this question, because the Board, if it had properly found

that Mr. Summers knew of the diagnosis, might also have found that in the face of this

knowledge Mr. Summers did not really believe that he had never suffered from

depression. But the Board never made this last finding and was, as we have said, in

any case, precluded from making it because its predicate, Mr. Summers's knowledge,

finds insufficient support in the record.

The record on this point therefore lacks a finding on a crucial point, namely,

whether Mr. Summers subjectively believed that he had ever suffered from a mental

disorder, and the Board's holding that he falsified his application in this respect

therefore cannot stand. If the FAA wishes to know whether pilots licensed by it have

ever been diagnosed as suffering from a mental disorder, a datum of manifest relevance,

it can ask a more specific question on its application form that elicits that information.

As the question is presently worded, the Board must find that an applicant harbored a

subjective intention to deceive as to the fact of a mental disorder before it can impose

the sanctions appropriate to a violation of 14 C.F.R. § 67.20(a)(1). And this is a

conclusion for which there is insufficient proof in the record. 

II.

The second question to which the Board held that Mr. Summers gave an

intentionally false answer, however, poses a larger difficulty for him. He admits that

Dr. MacDonald evaluated him in connection with a motion for a continuance in a

criminal case pending against him, a motion that expressly contended that he was

"suffering from severe depression" and was therefore "unfit ... to testify on his behalf

and fully cooperate with his attorneys in preparing a defense." The application asked
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Mr. Summers to "[l]ist all visits in the last 3 years to a ... psychologist ... for

examination, or medical/mental evaluation," and Mr. Summers listed none. The ALJ

made no finding at all with respect to this aspect of the Administrator's order, and the

Board noted only in a footnote that the failure to report this visit "was not inadvertent."

We take it that the Board was saying that it believed that Mr. Summers had answered

this question in an intentionally false way. 

Mr. Summers's excuse for his answer to this question is that the evaluation that

took place in his attorney's office was only "counseling" and that under the instructions

contained in his application only certain kinds of counseling that are not relevant here

had to be revealed in answer to this question. As an objective matter, however, we do

not think that what occurred in the lawyer's office could be fairly characterized as

counseling: Mr. Summers was evaluated and tested by a clinical psychologist to

determine whether he was fit to participate in a trial. This cannot by any stretch of the

imagination be called counseling, and, although we do not understand Mr. Summers to

be making the argument, we do not believe that he could have subjectively believed

that the interview with the psychologist was merely counseling. In this respect,

therefore, we think that the Board's conclusion that Mr. Summers falsified his

application finds ample support in the record and is not contrary to law. 

III.

While the Board's decision to uphold the Administrator's order revoking

Mr. Summers's Airman Certificate cannot be supported by the Board's conclusion that

he falsified his application when he said that he had never suffered from depression, its

decision is supportable on the ground that Mr. Summers was intentionally untruthful

when he failed to reveal that Dr. MacDonald had evaluated him. Because we are

confident that the Board would have upheld the Administrator's decision on this ground

alone, we affirm its order.
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A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.