The Honorable Michael J. Melloy, Chief Judge, United Sta tes 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

___________ Befor e HANSEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, an d 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, an d uphol ding the FAA Administrator's order revoking his Airman Certificate because he falsified an application for a medical certificate. The Administrator held that-2-

Mr. Summers had responded untruthfully when he replied in the negative to tw o questions, one asking him

whether he had " ever

had ... [m]ental disorders of any sort" (emphasis in original), including depres sion, the other inquiring whether he had visited any health professionals for evaluation within the three years immediately precedin g the applic ation. It was undisputed that only two weeks before he completed hi s 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 te stified before the ALJ that h e did not know of this diagnosis until after he filled out his application, an d Dr. Mac Donald testified that he did not recall relaying the diagnosis to Mr. Summers before that time.

I. We not e, first, that in order to be in violation of the relevant regulation, 1 4 C. F.R. § 67.20(a)(1), Mr. Summers would have had to have made a "fraudulent o r intention ally false statement" on his application. The Board determined tha t Mr. Sum mers had indeed intentionally made a false statement because, contrary t o Mr

. Summers's testimony at the hearing before the ALJ, he had actually learned o f Dr. MacDonald's diagnosis before he filled out his application.

Mr. Summers has two complaints about this finding. First of all, he says, i t cannot st and 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 t he finding was clearly erroneous or there is a "compelling reason" to overturn it. See Chirino v. National Transp. Safet y Bd. , 849 F.2d 1525, 1530 (D.C. Cir. 1988). The dif ficulty with this argument is that the ALJ never made a finding as to whethe r Mr. Summer s knew about the results of his psychological evaluation at the relevan t time; the ALJ simply concluded generally that the Administ rator had failed to make out
a case of intentional falsification, without any reference whatever to the testimony or the applicable law.-3-

Mr. Summers's other objection to t he Board's finding concerning his knowledge of Dr. MacDonald's diagnosis is that it is not supported by the record, because th e Board's finding relied almost entirely on a letter that Mr. Summers wrote after thi s proceeding was begun, a letter intended to explain why he ans wered 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 situat ions that he was then facing was entirely normal. Indeed, he said in the letter, "Dr. MacDonald has told me that I was reacting
no rmally to these identifiable stressors." The Board seized on this last statement a s evidence that Mr. Summers was aware of Dr. MacDonald's diagnosis at the relevant time.

We agre e with Mr. Summers that this finding is not supported by substantia l evidence. Our reading of the letter is that Dr. MacDonald had a t some time subsequent to t he 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 therefor e 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 o f Dr. MacDonald's diagnosis, because the questio n to which he stands accused of giving
an inte ntionally false answer did not ask him if he had been diagnosed as havin g depression. It asked him instead if h e had ever "had ... depression." We are unable to
see how it can reasonably be said that Mr. Summers's statement that he had neve r suffered from d epression was intentionally false unless he believed that he had in fact sufferedfrom 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.-4-

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 t o
re quire reporting" misses the mark. As we have said, the question to whic h 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 irre levant to this question, because the Board, if it had properly found that Mr. Summers knew of the diagnos is, might also have found that in the face of this knowledge Mr. Summers did not really believe that he had never suffered fro m depression. But the Board never made this last finding and was, as we have said, i n any case, pre cluded from making it because its predicate, Mr. Summers's knowledge, finds insufficient support in the record.

The recor d on this point therefore lacks a finding on a crucial point, namely , wheth er Mr. Summers subjectively believed that he had ever suffered from a menta l disorder, and the Board's holding that he falsified his application in this respec t therefore cannot s tand. 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 i s presently worded, the Board must find that an applicant harbored a subjective intentio n to deceive as to the fact of a mental disorder before it can impose the san ctions 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 a n 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 crimina lcase pending against him, a motion that expressly contended that he wa s "suf fering from severe depression" and was therefore "unfit ... to testify on his behalf and fully coop erate with his attorneys in preparing a defense." The application asked-5-

Mr. Sum mers to "[l]ist all visits in the last 3 years to a ... psychologist ... fo r
exa mination, or medical/mental evaluation," and Mr. Summers listed none. The ALJ made no find

ing 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 theBoard was saying that it believed that Mr. Summers had answered this question in an intentionally false way.

Mr. Summers's excu se for his answer to this question is that the evaluation that took place in his attorney's office was only "cou nseling" 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 que stion. As an objective matter, however, we do not thin k that what occurred in the lawyer's office could be fairly characterized a s counseling: Mr. Summers was evaluated and tested by a clinical psychologist t o determine whether he was fit to partici pate in a trial. This cannot by any stretch of the imagination be called counseling, and, altho ugh we do not understand Mr. Summers to be making the argument, we do not believe that he could have subjectively believe d that the interview with the psychologist was merely counseling. In this respect , therefore, we think that the Board's conclusion that Mr. Summers falsified hi s 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 revokin g Mr. Summers's Airman Certifica te cannot be supported by the Board's conclusion that he falsified his application when he said that he had never suffered from depression, its de cision is supportable on the ground that Mr. Summers was intentionally untruthfu l when he failed to reveal that Dr. MacDonald had evaluated him. Because we ar e confident that the Board would have upheld the Administrator 's decision on this ground alone, we affirm its order.-6-

A true copy.

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