Avionics News June 2019 - 29

preponderance of the reliable evidence, violations of
14 CFR §§ 43.13(a), 145.201(b), (c)(1) and (2), and
that those charges should not have been dismissed
for violation of the Board's stale complaint rule, as
alleged by respondent. For the reasons noted herein,
however, I dissent from 25 of the majority's findings
of intentional falsification under 14 CFR § 145.12(a),
and its reversal of the law judge's choice
of sanction."
Sumwalt's dissent bordered
on scathing, adding, "I do not
share the majority's enthusiasm
for such expansion of this
jurisprudence, when doing
so - practically, if not
intentionally - absolves the
Board of its responsibility to
undertake the very analysis of a
respondent's subjective intent and
understanding called for in Acting
Administrator v. Reynolds."
Sumwalt pointed to the "three-prong standard"
for determining intentional falsification and said the
third prong - knowledge of the falsity of the fact - is
crucial to this case because the ALJ determined there
was no proof of intentional falsification.
The majority's opinion called the AeroBearings
case "an excellent opportunity to expressly expand
the Board's 'willful disregard' standard ... to
mechanic intentional falsification cases."
Previously, for the FAA to prove falsification, the
agency had to meet certain standards for intentional
falsification. An omission in a maintenance record
could be considered falsification but only if the
mechanic had intent to falsify the record. Omissions
immaterial to future work on the aircraft and left out
of the record for simplicity or time's sake were not
considered falsification.
Sumwalt supported the ALJ's decision to withdraw
the revocation and instead require the company
to recreate technical data providing evidence of
appropriate inspections and maintenance to the

satisfaction of the FAA, with the company's repair
station certificate indefinitely suspended until such
time as that correction occurred.
Sumwalt pointed to another case in which the
Board affirmed an ALJ's reduction from revocation
to indefinite suspension in the case of Administrator
v. Air Trek, saying "it defies logic" that the Air Trek
violations could be resolved with suspension
and new operations and maintenance
procedures and training while
AeroBearings' violations deserved
revocation. Using this and one
other case in which the FAA
invoked an indefinite suspension,
Sumwalt dissented from the
majority's reversal of the ALJ's
choice of sanction and affirmed
the ALJ's order of indefinite
suspension pending compliance with
regulations.
In the end, the Board nevertheless upheld
the FAA's revocation, leading AeroBearings to
appeal to the U.S. Court of Appeals for the District
of Columbia Circuit. In a Jan. 11, 2019, hearing, the
court considered the NTSB's decision and focused on
whether omitting information without the intention
to deceive or withhold information is actually
falsification.
The court's opinion is still pending as this article
goes to press.
"If the court upholds the NTSB's decision,
maintenance professionals should be cautious
of what they include or omit from maintenance
records," said Kent Jackson, founding partner of
Jetlaw, a Washington, D.C., aviation law firm.
"Chairman Sumwalt's dissent was accurate. This
case could establish a dangerous new precedent
for 'falsification,' which is not just a matter of
certification action against a technician's certificate
but could also have criminal implications."
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Avionics News June 2019

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