Become airline pilot with expunged record?

[Thecunningone]

hello everyone,

I am 29 years old and when I was 19 I had an unfortunate event in which I was charged with theft. It was a stupid thing in which I took my neighbors horse trailer to carry my dirt bikes for the day and they found out and reported it stolen and pressed charges. Anyway, I was clearly immature then, and I had to plead guilty to theft to receive a diversion of no punishment. Years went by and when I got a job at a hospital the background check came back showing the conviction, which then prompted me to get it expunged. So, now i have made sure it is COMPLETELY off my state record and the FBI record and I have double checked with a finger print background check from the FBI and TBI. I was accepted into nursing school as well which requires a full fbi fingerprint background check too. So it definitely seems to be gone.

So, my question is: is it plausible to become an airline pilot with this and do you foresee this giving me any issues down the road?

 

[PeterNSteinmetz]

Actually I am wondering about the legal issues with this. My understanding of a true expungement, which is available in some states, is that you never have to answer yes that you have an arrest or conviction, not even under oath.

For the OP, it may be best to check with an attorney in your state and perhaps an aviation attorney there before filling out any forms.

 

[PeterNSteinmetz]

For many Federal purposes - and for immigration/customs purposes in the US and many other countries - you have to disclose without regard to expungement.

Now I am even more curious. I can see how they might get away with this for immigration. But for US citizens it seems one might be able to make a due process argument against a person with a true expungement having to disclose.

It appears that specific government agencies can demand such disclosure if that is specifically authorized by law.

I would be very interested to hear the case law on this. A quick google search did not show an answer regarding the FAA.

Probably needs an aviation attorney to search for any precedents.

 

[PeterNSteinmetz]

I'm not an attorney, but my understanding of the situation is as follows: Expungement in a state's legal system is a state action, not a federal action. My guess is that what lets the feds "get away with" not not being bound by state expungement is that state laws cannot interfere with enforcement of federal laws and regulations. I suspect that the supremacy clause of the U.S. Constitution has something to do with that. So when a federal agency creates a regulation that requires disclosure of something, a state cannot countermand that.

In general true about the supremacy clause, though I think there might be some arguments about due process that would be possible, if that is the interpretation of the FAA. I was not able to quickly find precedent on what their interpretation regarding expungements has been or cases where that was challenged.

As noted by @Clip4, this may be moot for the OP because he mentioned a “diversion”, which is legally distinct from a conviction.

 

[PeterNSteinmetz]

I just don't see how a state law or state action can prevent the federal government from enforcing its own laws and regulations.

Right, but there are constitutional limits on what the Federal government is allowed to do. IANAL, but it strikes me that the Federal government demanding the disclosure of an expunged conviction might be argued to violate the due process afforded the convicted under the Fifth amendment.

I have not been able to find any FAA interpretation regarding this nor precedents. It may be terra incognito from a legal perspective. There might be Federal precedent regarding other criminal actions and sentencing interpretations however.

 

[PeterNSteinmetz]

I definitely will seek out an official legal guidance on this before I spend thousands pursuing this route. Surely there is a clear and concise answer somewhere out there.

I think that is a very good idea. Probably best to ask an aviation attorney who deals in aeromedical cases.

This may actually be legal terra incognito. Such an exact case may never have had a ruling and there may be no existing interpretation from the FAA.

In that case, the best you can do is pay some money to obtain an opinion letter from a qualified attorney. They can advise you on the relative risks involved in such a case, then proceed accordingly.

 

[PeterNSteinmetz]

I consider myself one of these.

Aside from the OP's case, I am wondering in general about this and if you have an opinion readily.

Do you think there is an existing FAA opinion letter or a case pertaining to the situation where an applicant had charges, successfully went through a diversion, and the record was expunged? Does that applicant have to disclose that as a conviction?

What about when the applicant was convicted but it was expunged in a state that provides for complete expungement? (I know expungement on the Federal level is quite limited).

 

[PeterNSteinmetz]

Thanks, that is interesting.

There is also NTSB case 8750, available here https://www.ntsb.gov/legal/alj/OnODocuments/Aviation/5750.pdf. It also brushes on this issue but does not resolve it. Basically applicant thought he might be eligible for a DUI diversion program and so answered no on the 8500-8. Apparently was not diverted so ended up having certificates suspended for intentional falsification and lost on appeal to the NTSB.

Seems like there at least two cases then where the issue of expungement has been brushed on. But none that definitely decide the matter of whether of not such allows one to answer no on the form 8300-8. Legal terra incognito. Interesting from an academic legal point of view -- not so fun to be there as an applicant or defendant.

It seems there are none that deal with the case of a diversion specifically. That is of course in most situations intended to not be a conviction or having a criminal record in the first place, as long as one completes the diversion. My understanding is that there is never a conviction entered in the court record.

Since the OP's offense was not a driving or DUI related matter, it then seems that really what was on his record was a felony arrest. But per instructions, he doesn't have to enter merely an arrest and not conviction if it is not driving or DUI.

I hope the OP has been able to get a specific opinion on his case -- and might share it here at some point.

 

[PeterNSteinmetz]

The airline itself can ask for whatever it wants. They can ask if you clip your nails every two weeks if they want to.

I believe the in the US that is true, so long as they don't ask the prohibited questions about protected classes, such as religion, race, etc. In many states, there is also a legal prohibition against them making a hiring decision based on expunged records.

 

[PeterNSteinmetz]

Okay, so I contacted my attorney on this one. Date original case was filed was 2010. Apparently the final disposition was in 2011. The charges were dropped to Theft of property 500-1000$ and the final disposition states "judicial diversion." Then it was confirmed expunged. This is all the information my attorney has. Does anybody have any advice on this one?

Lot of additional information here and additional questions that have arisen. If the theft of property $500-1000 was a misdemeanor, then I think you are done. The 8500-8 asks about felony convictions. Recheck with your original attorney on that one. (EDIT - guessing here, but if the conviction was in TN, $500-$1000 appears to be the lowest level of felony conviction https://www.criminaldefenselawyer.c...lties/petty-theft-tennessee-penalties-defense) .

If that amount is a felony in the jurisdiction where you received the diversion, I think you are in less known legal territory. My impression, but IANAL, is that you can omit a true diversion if it was not entered on your court record as a conviction, but what you say above make it appear there was a conviction entered on the record.

In my and @PPC1052 's posts above, we have noted some of the cases that touch about these issues. It does not appear to have ever been clearly adjudicated.

So as to what to do, I would first gather all the records you can, then talk with an aviation attorney about it. They can advise you on the relative risks here. I suspect you will have to choose between A) obtaining an opinion letter from an aviation attorney stating that per their reading of the laws and regulations you can omit this in your application, or B) applying with the help of an experienced senior AME and trying to clear it up front through the FAA (it sounds like it should be clearable).

Tradeoffs will be:

Option A is somewhat quicker to start with and likely a little bit cheaper, but leaves you with an unknown legal risk and a potential really big delay and expense down the line. The opinion letter provides you with a sort of proof of good faith, might be an argument for a defense of not intentionally misrepresenting a fact on the form in the minds of the FAA, but does not completely clear you. If such a case went all the way to the Federal appeals court (maybe the NTSB would see the argument that a diversion and expunged record doesn't count, but I doubt the FAA itself would see it that way), it could cost more than $100k to pursue and would take years.

Option B will take a bit longer, perhaps 6 months, to start with and cost perhaps $5000. Once you have it cleared on the FAA record you are very unlikely to face serious legal action in the future, though it is on the record for future employers to see.

Personally, I would not make such a choice without the input of a good aviation attorney.

 

[PeterNSteinmetz]

In what way, specifically?

Well, IANAL, so just speculating here. Perhaps one could argue that the state expungement was the provision of due process to the defendant. By trying to override that and make decisions based on an expunged record, the Federal government would be denying that due process to the defendant, in violation of the guarantee of that in the 5th amendment.

As I mentioned in a post above, there may be related existing case law on this with regard to sentencing. Sometimes Federal sentencing guidelines take into account prior state convictions. I bet there has been a case where a defendant wanted a lower sentence and argued for it based on their prior state record being expunged. EDIT: per the US Sentencing Commission, expunged convictions do not count. A diversion with an admission of guilt does, while a diversion with deferred prosecution does not. https://www.ussc.gov/guidelines/2018-guidelines-manual/2018-chapter-4.

As myself and @PPC1052 noted above, there appear to be no existing FAA interpretations or NTSB decisions which deal explicitly with this issue. That means if it arose and the defendant really wanted to fight it, it would likely need to go all the way to the appellate court to make such a constitutional argument. The NTSB, as an administrative hearing, does not deal with those. In the Federal system, to do that, you would have to first raise that issue in the FAA hearing, preserve it through the NTSB hearing, then finally get it in front of the appeals court. It would be a very long and expensive process. Though it does strike me as a potentially interesting legal issue in an academic sort of way.

 

[PeterNSteinmetz]

I think that increases the odds of the expunged record being detected, so I would not answer no on the basis of that expungement without having consulted with an aviation attorney and obtained a opinion letter. It does sound though like you can be issued a certificate after disclosing, it will just take a few months. You don't need a medical certificate until solo in any case.

Along with several other here, I would suggest consulting an aviation attorney. That will cost you a bit of money up front, but then you will have a much better understanding of the options. You can probably get a verbal consult in a few days and an opinion letter within a few weeks.

 

[PeterNSteinmetz]

Thats good advice, I will do that tomorrow. So in theory, if I disclose and get my medical, by the time its time for airlines the distance between should be enough to answer "no" if they ask "in the past 10 years have you ever" correct?

Do you recommend I go ahead and get the medical since you said the process will take a few months longer than normal?

I don’t believe you are under any legal obligation to disclose the expungement to a potential employer at all. It may even be illegal for them to base a hiring decision on an expunged record. But this depends on the state.

I would not apply until knowing the opinion of the aviation attorney.

 

[PeterNSteinmetz]

It's broader than the FAA and there is pretty much nothing solid.

Yes. Hope the OP has been able to consult an aviation attorney to advise him on the risks in his case.

It is interesting how basically all laws and regulations have their edge cases.

 

[PeterNSteinmetz]

I understood Mark to be saying that the case law on this is not clear and consistent.

Exactly. It appears there has never been a case on precisely this issue.

Related cases suggest that the FAA will want to see the expunged record and that is in their MedExpress guide. If discovered, they might choose to bring an enforcement action, but there is no record of having done so.

The NTSB might accept a defense that a truly expunged record does not have to be disclosed when an appeal gets there, but they may not. Their record indicates they may incline to not.

There is no appellate court case beyond the NTSB dealing with it, which is where any constitutional issue could be raised. The Federal sentencing guidelines respect state level expungement, which suggests there might be an argument there.

Cost of going to appellate court would likely be $100k or more.

So it might be an interesting case from an academic legal perspective, to resolve the issue. But I see the OP has received the practical advice to not try and be the example case, since it likely won’t be a huge deal in terms of career.

 

[PeterNSteinmetz]

The expungement here is not of a conviction (which he doesn't have), but of the records that he was charged at all.

That aspect makes this a bit more complicated yet. There is a distinction between a diversion with admission of guilt and one without any such admission in many treatments of diversion.

I believe the OP here stated that it was a diversion with admission of guilt. That tends to be treated more like a conviction in many cases.

Nonetheless, it would be a test case if the OP chose to test it by not admitting as demanded by the FAA’s instructions, as there is no clear case law.

I believe the OP has been advised to do the practical thing and admit it on the form and not become the test case.

 

[PeterNSteinmetz]

Agreed that the exact meaning of a diversion depends on the state, and thus, whether it would count as a "conviction" which was expunged from the FAA's perspective. The OP made a number of statements which suggest that in Tennessee it may not have counted as a conviction at the time, though there is still some confusion here:

Well interestingly enough, it was a diversion...which should mean no conviction. However when I applied to a local hospital, it came back showing a conviction of theft.

Apparently the final disposition was in 2011. The charges were dropped to Theft of property 500-1000$ and the final disposition states "judicial diversion."

I did read that in Tennessee in 2014, it was ruled that if you complete a diversion program it is not legally specified as a "conviction," however that is only in the state of TN as far as I am concerned, and my diversion was in 2010.

Evidently AOPA legal counsel advised he disclose it in any case. Certainly the conservative thing to do if you don't want to be the test case. OTOH, that may have been unnecessary if in TN at the time the judicial diversion was not legally a conviction. Unfortunately, in these type of cases, there is often no clear answer.