                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0477n.06

                                          No. 16-4332                                FILED
                                                                               Aug 16, 2017
                         UNITED STATES COURT OF APPEALS
                                                                           DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT

MATT LAWSON,                                   )
                                               )
       Petitioner,                             )
                                               )
                                                      ON PETITION FOR REVIEW
v.                                             )
                                                      FROM THE NATIONAL
                                               )
                                                      TRANSPORTATION
MICHAEL P. HUERTA, Administrator,              )
                                                      SAFETY BOARD
Federal Aviation Administration,               )
                                               )
       Respondent.                             )
                                               )


       Before: CLAY, GRIFFIN, and THAPAR, Circuit Judges.

       THAPAR, Circuit Judge. The maintenance records just did not line up with the Cessna

they were inspecting. So the mechanics warned the Federal Aviation Administration (“FAA”),

which traced the discrepancies to mechanic Matt Lawson. The FAA ultimately found Lawson

intentionally falsified the records and revoked his Aircraft Mechanic Certificate and Inspection

Authorization.   Lawson appealed, but the National Transportation Safety Board (“NTSB”)

affirmed.   Lawson now challenges that decision, arguing that the Board’s decision was

procedurally infirm, that its findings lacked substantial evidence, and that its sanction was

inappropriate. We disagree and so deny his petition for review.

                                               I.

                                               A.

       The FAA is a stickler for record keeping. Any time a mechanic works on an airplane or

performs an annual inspection, FAA rules require him to make and certify accurate records of the
No. 16-332, Matt Lawson v. Michael Huerta


work performed in the airplane’s maintenance logbook. Whether the mechanic replaces an

engine or simply tinkers with a gauge, the logbook must collect its due.

       Certain work will trigger additional requirements. When a mechanic makes a “Major

Repair and Alteration,” for instance, he must describe it on an FAA Form 337. And when the

work is finished, he must provide copies of the completed form to the airplane’s owner and the

FAA. The logbook and the form give the plane’s owners, the FAA, and future mechanics the

information they need to keep the plane safe. See FAA Advisory Circular No. 43.9-1F.

       Sometimes a mechanic must ask the FAA to approve his Form 337 before he gets to

work. This will depend on the availability of “approved data.” Approved data includes all the

schematics and instructions that the agency has already approved for use in the field. One source

is the Supplemental Type Certificate (“STC”), which sets out pre-approved instructions for

repairs or alterations. Whenever a mechanic follows those instructions, he can simply fill out a

Form 337 and get on with it. But if he cannot find an STC instruction for his project, he must

request a “field approval” before proceeding.

       To request a field approval, a mechanic must describe the alterations he intends to make

on a Form 337, gather data showing that the alteration is safe, and then send the materials to an

FAA field office. At the field office, an Aviation Safety Inspector reviews the materials. Once

the inspector approves the request, the mechanic has the go-ahead.

                                                B.

       Matt Lawson, owner and operator of Lawson Aviation, converts Cessnas into seaplanes.

Until the FAA brought this action against him, Lawson held an Aircraft Mechanic Certificate

and Inspection Authorization. These permitted him to repair, modify, and inspect airplanes.




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No. 16-332, Matt Lawson v. Michael Huerta


       In 2011, a Cessna owner asked Lawson to make alterations to his plane (“the Aircraft”)

and then to inspect it. The alterations required a field approval, so Lawson submitted a Form

337 and supporting data to a local FAA field office. He proposed to fit the Aircraft with a K-

model engine and a 78-inch propeller.

       Lawson’s request was assigned to Safety Inspector Daniel Moore. Inspector Moore

denied the first request, finding that it lacked sufficient data. After they corresponded further,

however, Moore drafted new Form 337 language for Lawson.              And Lawson, at Moore’s

instruction, gathered more data, including an STC that permitted installing G-model (rather than

K-model) engines in various Cessna aircraft (“the Cessna STC”). Moore approved a revised

Form 337 that followed that STC, but with one variation: Moore allowed Lawson to install a 78-

inch propeller instead of the pre-approved 76-inch propeller.

       Lawson got to work. In December 2012, he stated in the Aircraft’s logbook that he had:

(1) inspected the Aircraft and deemed it airworthy; (2) installed a G-model engine pursuant to

the field approval and Cessna STC; and (3) repaired the Aircraft’s lower firewall with parts from

a plane of the same year and model. He also completed and certified two Form 337s reflecting

the alterations he had made. On Form 337(I)—the same one Moore approved—Lawson certified

that he had installed a G-model engine and a 78-inch propeller. On Form 337(II), Lawson

certified that he replaced the lower firewall in compliance with the applicable Cessna manual.

       More than a year later, mechanics at a different repair station inspected the Aircraft.

They noticed that its records did not match its actual condition, so they alerted the FAA, which

assigned the case to Maintenance Inspector Randy Steffes.         Steffes inspected the Aircraft

himself, finding twenty-one discrepancies between its condition and its records. In light of all

these discrepancies, he determined the Aircraft was not airworthy.




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No. 16-332, Matt Lawson v. Michael Huerta


       After further investigation, the FAA concluded that Lawson was responsible for the

discrepancies and issued an emergency order revoking his Mechanic Certificate and Inspection

Authorization. Lawson appealed the order to the NTSB. After a two-day trial, an administrative

law judge (“ALJ”) upheld the order.

        Lawson then appealed to the full Board, which affirmed the ALJ’s finding that Lawson

had made several false entries in the Aircraft’s logbook. Specifically, it found that: He certified

that the Aircraft was airworthy, when it was not; he certified that he had installed a G-model

engine and a 78-inch propeller when, in truth, he had installed a K-model engine and 80-inch

propeller; and he certified that he installed stainless-steel rivets in the Aircraft’s firewall when, in

fact, they were aluminum. Each of these entries, the Board determined, was intentionally false

and thus a violation of FAA regulations. See 14 C.F.R. § 43.12(a)(1) (prohibiting any person

from “mak[ing] or caus[ing] to be made . . . [a]ny fraudulent or intentionally false entry in any

record or report that is required to be made, kept, or used to show compliance with any

requirement under this part”). It too affirmed the FAA’s emergency order revoking Lawson’s

credentials. This petition followed.


                                                  II.

       We may set aside an NTSB order only if it was “arbitrary, capricious, an abuse of

discretion, or, where there has been a hearing, the agency action is unsupported by substantial

evidence.” Blackman v. Busey, 938 F.2d 659, 661 (6th Cir. 1991). Although we review the

NTSB’s legal conclusions de novo, we must accept its factual findings if they are supported by

substantial evidence—evidence that “a reasonable mind might accept as adequate to support a

conclusion.” Id.; see also Kratt v. Garvey, 342 F.3d 475, 480 (6th Cir. 2003).




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No. 16-332, Matt Lawson v. Michael Huerta


       Lawson raises three arguments. First, he argues that the Board’s factual findings were

not supported by substantial evidence or in accordance with applicable law. Second, he argues

that the Board erred in refusing to dismiss the action under the “stale complaint rule.” Finally,

he argues that—even if the charges against him are true—revocation was not an appropriate

sanction.


                                                  A.

       FAA regulations prohibit mechanics from making “fraudulent or intentionally false

entr[ies]” in required maintenance records. 14 C.F.R. § 43.12(a). Intentional falsification is a

“knowing misrepresentation of a material fact.” Cassis v. Helms, 737 F.2d 545, 546 (6th Cir.

1984). To prove intentional falsification, the FAA must establish that Lawson (1) made a false

representation, (2) in reference to a material fact, (3) with knowledge of its falsity. Hart v.

McLucas, 535 F.2d 516, 519 (9th Cir. 1976). The FAA need not, however, prove that Lawson

specifically intended to deceive or that someone relied upon his misrepresentation—those are

elements of the distinct offense of fraud. Cassis, 737 F.2d at 546 (“Fraud and intentional

falsification are distinct concepts for purposes of this regulation.”).

       The NTSB found that Lawson intentionally falsified logbook entries and Form 337s.

Lawson challenges those findings on procedural grounds and on the merits.

   1. Lawson’s Procedural Challenges

       Lawson first argues that the FAA’s complaint did not satisfy the heightened pleading

standard for fraud allegations. See Fed. R. Civ. P. 9(b) (requiring parties “alleging fraud” to

“state with particularity the circumstances constituting fraud”); United States ex rel. SNAPP, Inc.

v. Ford Motor Co., 532 F.3d 496, 503-04 (6th Cir. 2008) (describing “Rule 9(b)’s special




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No. 16-332, Matt Lawson v. Michael Huerta


pleading standard”). Alternatively, he argues that the FAA’s complaint did not contain the

“short and plain statement” of a claim for relief. Fed. R. Civ. P. 8(a)(2).

       Both arguments fail. First, Lawson failed to raise his Rule 9(b) argument before the

NTSB. A reviewing court may consider an objection to an NTSB order “only if the objection

was made in the proceeding conducted by the Board or if there was a reasonable ground for not

making the objection in the proceeding.” 49 U.S.C. § 1153(b)(4). Lawson has offered no reason

for failing to raise this argument below, so he may not raise it here. See Gabbard v. FAA, 532

F.3d 563, 566 (6th Cir. 2008) (“[H]e failed to present this argument to the Board, which by itself

defeats the argument here.”).

       Second, the FAA’s complaint satisfied the notice-pleading standard of Rule 8. See

Huerta v. Armstrong, NTSB Order No. EA-5660, 2013 WL 3227358, at *3 (June 3, 2013)

(“[T]he Administrator utilizes the general practice of ‘notice pleading’ in cases under the Board's

Rules of Practice.”). Rule 8 ensures simply that each party has adequate notice of the other’s

claims and an opportunity to meet them. See Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993).

Here, the FAA alleged in its complaint that Lawson had (1) installed a K-model rather than a G-

model engine, (2) installed an 80-inch rather than a 78-inch propeller, (3) installed aluminum

rivets rather than stainless-steel rivets, and (4) claimed to have complied with the Cessna STC

and Forms 337(I) & (II) even though he had not. And all of these discrepancies, the FAA

alleged, were violations of its regulations—specifically, 14 C.F.R. § 43.12(a)(1). Thus, the FAA

notified Lawson of both the claim and the factual basis for the claim. Rule 8 required no more.

Cf. Huerta v. Ducote, 792 F.3d 144, 154 (D.C. Cir. 2015) (concluding that there is “no structural

or textual basis” for imposing a “heightened-pleading standard” on a complaint that “facially and

plausibly alleges all of the key elements” of intentional falsification).




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No. 16-332, Matt Lawson v. Michael Huerta


   2. Lawson’s Substantive Challenges

        Lawson next argues that the NTSB’s findings were not supported by substantial

evidence, namely its findings that he had falsely reported the Aircraft as airworthy in his annual-

inspection logbook entries, made false engine-installation logbook entries, and falsely certified

Form 337(I) and Form 337(II).

   i.      The Annual-Inspection Logbook Entries

        As to the annual-inspection records, Lawson questions whether the FAA proved that he

made any false entries at all. The Board saw no direct evidence of the Aircraft’s condition at the

time he inspected it. How then, he asks, could it conclude that his inspection entries were false?

        Easy: The Board may look to circumstantial evidence. See Adm’r v. Lewis, NTSB Order

No. EA-1177, 1978 WL 19059, at *4 (Aug. 17, 1978) (“[I]n cases where an improper repair or

inspection is not discovered until some point in time after the act or omission which constitutes

the regulatory violation, the evidence presented by the Administrator must of necessity be

circumstantial in nature.”). And there was ample circumstantial evidence to support the Board’s

conclusion here. First, the Aircraft flew for only nine hours after Lawson returned it to service.

Second, the logbook bore no subsequent entries related to the alterations and repairs that Lawson

performed. And, third, the discrepancies were not attributable to deterioration over time—they

must have arisen, instead, from purposeful alterations to the Aircraft. That final point found

support in photographs of the discrepancies, engine-installation instructions with which Lawson

apparently failed to comply, expert testimony from two FAA Inspectors, and Lawson’s own

testimony. See Logbook, J.A. 255-56; Form 337(I)-(II), J.A. 257-60; Engine Data Plate Photo,

J.A. 265; Cessna Structural Repair Manual, J.A. 267; Installation Instructions, J.A. 268-281;




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No. 16-332, Matt Lawson v. Michael Huerta


STC SA00728SE, J.A. 292-93; see also ALJ Order, J.A. 224 (crediting Inspectors).               This

evidence was sufficient to justify the NTSB’s finding.

   ii.      The Engine-Installation Logbook Entries & Form 337(I)

         As for the engine-installation entries and Form 337(I), Lawson concedes that they were

inaccurate in hindsight. But he insists the FAA failed to prove he intentionally falsified them.

         There was substantial evidence to support the Board’s conclusion that Lawson was aware

of each of the falsities in Form 337(I) and the corresponding logbook entries when he made

them. According to Inspectors Moore and Steffes, Lawson admitted in interviews that the engine

he installed was a K-model—not a G-model, as he certified—and that he believed the two

engines were essentially the same. Transcript, J.A. 90, 122, 224. And Lawson himself testified

that he knew he had installed an 80-inch propeller even though Form 337(I) only authorized a

78-inch one. Transcript, J.A. 149. Additionally, the ALJ noted that Lawson “testified in many

instances that the STC requirements were unnecessary or incompatible” and that he had

“chose[n]” not to comply with the STC or to seek adjustments to Form 337(I). ALJ Order, J.A.

225-26. The Board agreed with the ALJ, finding Lawson “evasive” about whether he knowingly

disregarded the Cessna STC and “unwilling[]” to consult that STC despite certifying his

compliance with it. Bd. Order, J.A. 394. There is more evidence to that effect, but it need not

detain us here. The Inspectors’ and Lawson’s testimony alone support the Board’s finding.

         Lawson responds that on this evidence he is guilty, at most, of poor wording and

carelessness—not intentional falsification. In support, he cites several cases where the Board

refused to revoke airmen’s credentials for ambiguous or incomplete logbook entries. See, e.g.,

Adm’r v. Alvarez, 5 N.T.S.B. 1906, 1906 (1987) (addressing intentional falsification by

“omission or failure to make an entry”); Babbitt v. Hayes, NTSB Order No. EA-5459, 2009 WL




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No. 16-332, Matt Lawson v. Michael Huerta


1956365, *5 (June 24, 2009) (addressing “ambiguous language” in a logbook entry that used the

term “replaced” when “reinstalled” was intended). But unlike those cases, this is not a case of

simple ambiguity. Lawson said he installed a G-model engine and a 78-inch propeller in

accordance with the Cessna STC and Form 337(I). But he did not. Instead, he installed a K-

model engine and an 80-inch propeller. These facial discrepancies are substantial evidence of

intentional falsity.   After all, if such patent discrepancies amounted only to excusable

“ambiguities” or “omissions,” nothing would be certain. In intentional-falsification cases, the

FAA would be reduced to seeking confessions.

       Alternatively, Lawson argues that he could not have intentionally falsified either the

engine-installation entries or the Form 337(I) because Inspector Moore drafted the Block-8

language on Form 337(I). This argument fails because it makes no difference who drafted the

language. Alterations must accord with the Form’s terms, whoever drafted them. See Form

337(I), J.A. 257. Lawson admits that he did not even read the Block-8 language Inspector

Moore drafted before performing the engine and propeller installations. Yet he argues that he

was justified in certifying that he complied with the drafted language. Transcript, J.A. 157-58.

This is like a student contesting his “F” by claiming that, no, actually, it was his friend’s work—

he just copied it. It was Lawson’s responsibility to ensure that the Form 337 and logbook

language accurately reflected the work he did on the Aircraft. See Cooper v. NTSB, 660 F.3d

476, 483 (D.C. Cir. 2011) (citation omitted) (“[A]n airman, having acted in a manner that could

be viewed as evincing a willful disregard of the truth or falsity of the information officially

submitted . . . should be determined to have intended that whatever answer he gave be utilized in

the review of his qualifications.” (citation omitted)). His attempt to shift the blame is unavailing.




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No. 16-332, Matt Lawson v. Michael Huerta


   iii.      Form 337(II): The Aluminum Rivets

          Lawson does not dispute that he knowingly used aluminum rivets in the Aircraft’s

firewall, rather than the steel rivets called for by the Form 337(II). He argues, instead, that the

swap was immaterial because a Cessna engineer signed off on the aluminum rivets via email.

The ALJ excluded the engineer’s email, however, because Lawson failed to certify it as a

business record.

          Even if the email had been admitted, it would have made no difference. Information is

“material” if it is “capable of influencing” an agency decision.       Cassis, 737 F.2d at 547.

Inspectors Moore and Steffes testified that the FAA relies on the information in Form 337s in

determining the airworthiness and safety of aircraft. They also indicated at least one reason why

it matters whether an airplane’s rivets are stainless steel or aluminum: stainless-steel rivets are

fireproof; aluminum rivets are not. That example illustrates why Form 337 entries are important.

They provide aircraft owners and later mechanics with the information necessary to maintain

airworthy planes. If a Form 337 entry is not accurate, that inaccuracy is material to owners,

mechanics, and FAA Inspectors—regardless whether it is makes a difference to the airplane

manufacturer. See Garvey v. Thunderbird Propellers, Inc., NTSB Order No. EA-4648, 1998 WL

138881 at *2 (Mar. 26, 1998) (finding that a technician’s use of an “interchangeable” nut in

propeller repair work, rather than the nut called for by the manual and approved by the FAA

inspector, was a material misrepresentation), aff’d sub nom. Thunderbird Propellers, Inc. v. FAA,

191 F.3d 1290 (10th Cir. 1999); see also id. at *2 (“[T]he point here is not so much the adequacy

of the unauthorized part, but the accuracy of records that must be relied on in order for others,

unaware of the false listing, to obtain quality control or other information about it[.]”). The




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No. 16-332, Matt Lawson v. Michael Huerta


Board’s finding that Lawson intentionally falsified Form 337(II) by stating that he used steel

rivets was thus supported by substantial evidence and in accordance with applicable law.

                                                B.

       Lawson also argues that the Board should have dismissed the FAA’s claims under the

stale-complaint rule, which allows an airman to move to dismiss alleged violations that were

more than six-months old when the FAA initiated the action. See 49 C.F.R. § 821.33; Abou-

Sakher v. Garvey, 238 F.3d 419, at *2 (6th Cir. 2000) (table). The rule does not apply if—

accepting all allegations as timely and true—a complaint raises “an issue of lack of

qualification.”   49 C.F.R. § 821.33(b).    One lacks qualification if he has committed any

“regulatory violations that, by their very nature, warrant revocation[.]” Ducote, 792 F.3d at 148.

       Lawson’s argument fails for two reasons. First, it comes too late. The stale-complaint

rule is “a threshold inquiry that is enforced at the outset of an [FAA] proceeding through a

motion to dismiss the complaint.” See id. at 153 (citing 49 C.F.R. § 821.33). Yet Lawson did

not move to dismiss the complaint at the outset of the proceeding. He invoked the rule long after

his hearing before the ALJ. His stale-complaint argument was, by that time, stale.

       Second, the FAA’s complaint is shielded from the rule. The FAA plausibly alleged that

Lawson knowingly made false statements about his alterations to and inspection of the Aircraft.

Allegations of this sort, “by [their] very nature, suggests such a serious lack of honesty and

judgment . . . as to inherently call into question [Lawson’s] qualifications.” Id. at 154-55. That

is why the Board “has long recognized, as a virtually categorical matter,” that intentional

falsification of required records warrants revocation. Id. Accepting the FAA’s allegations as

true and timely, then, the complaint presents “an issue of lack of qualification.” 49 C.F.R.

§ 821.33(b).




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No. 16-332, Matt Lawson v. Michael Huerta


                                                 C.

       Lawson argues finally that—even if the charges against him were true—revocation was

excessive. Courts must uphold “NTSB decisions . . . regarding sanctions . . . unless they are

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”

Blackman, 938 F.2d at 663 (internal quotation marks omitted).

       The FAA and the NTSB have staked out a consistent position in their intentional

falsification cases. For good reason, they are serious about enforcing compliance with their

maintenance rules and preserving the integrity of their records-keeping system. See Helms v.

Cassis, 4 N.T.S.B. 555, 557 (1982) (“The maintenance of the integrity of the system of

qualification for airman certification, which is vital to aviation safety and the public interest,

depends directly on the cooperation of the participants and on the reliability and accuracy of the

records and documents maintained and presented to demonstrate compliance.”), aff’d, 737 F.2d

545 (6th Cir. 1984). Thus, the Board’s cases make clear that even a single incident of intentional

falsification constitutes a “lack of qualification” and justifies revoking the violator’s credentials.

See, e.g., Adm’r v. McCarthney, 7 N.T.S.B. 670, at *2 (Dec. 28, 1990) (“[E]ven one intentional

falsification compels the conclusion that the falsifier lacks the necessary care, judgment and

responsibility required to hold any airman certificate.”); Olsen v. NTSB, 14 F.3d 471, 476 (9th

Cir. 1994) (concluding that one “intentionally false logbook entry regarding [an aircraft]

tachometer” was “sufficient to justify the FAA’s revocation of [the mechanic’s] airframe and

powerplant mechanic certificate”). Those who fail to comply with these rules do so at their own

peril. And where, as here, they openly flout them, revocation is hardly arbitrary or capricious. It

is to be expected.




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No. 16-332, Matt Lawson v. Michael Huerta


                                            III.

      For the foregoing reasons, we DENY Lawson’s petition for review.




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