                        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,1 District Judge.
                               ___________

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


      1
       The Honorable Michael J. Melloy, Chief Judge, United States District Court for
the Northern District of Iowa, sitting by designation.
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.

                                           -3-
        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

                                           -4-
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.




                                           -5-
A true copy.

      Attest:

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




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