United States v. Emerson

United States Court of Appeals
For the First Circuit

No. 96-1627

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

ALAN EMERSON, INDIVIDUALLY, AND
D/B/A EMERSON AVIATION,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

Cyr, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lynch, Circuit Judge.

John P. Kalled for appellant.

Patrick M. Walsh, Assistant United States Attorney, with whom

Paul M. Gagnon, United States Attorney, was on brief for appellee.

February 26, 1997

COFFIN, Senior Circuit Judge. Appellant Alan D. Emerson has

been ordered to pay a civil penalty of $185,000 for numerous

violations of federal aviation law.1 He claims that the

assessment violates both the Excessive Fines Clause of the Eighth

Amendment and the Double Jeopardy Clause of the Fifth Amendment.

We find no constitutional error, and therefore affirm.

I. Factual and Procedural Background

On February 15, 1994, the administrator of the Federal

Aviation Administration (FAA) issued an emergency order revoking

Emerson's commercial pilot certificate. The action was based on

allegations that Emerson was responsible for more than thirty

unlawful flights. About a month later, on March 29, 1994, the

United States filed the complaint that underlies this appeal,

seeking civil penalties based on the same conduct that triggered

the FAA order, namely, the operation of charter flights after FAA

authorization to conduct such flights had been revoked.2 The

1 The complaint in this case also was filed against Emerson
d/b/a Emerson Aviation. Emerson Aviation no longer exists as an
enterprise, and we refer throughout this opinion to Emerson
individually as the sole defendant/appellant. We note,
additionally, that a corporation named Emerson Aviation, Inc. was
formed in 1994 after the violations at issue in this case. The
"New Emerson" acquired many of Emerson Aviation's operations,
assets and liabilities, though no compensation passed from one
entity to the other. Appellant's wife is president of New
Emerson, and he testified at trial that he is an employee without
any role as officer or shareholder.

2 In May 1992, the FAA had revoked Emerson's "Airman
Certificate" and Emerson Aviation's "Air Taxi Certificate," both
of which were required for appellant to operate charter flights.
In its 1992 order, the FAA found that Emerson ". . . lack[s] the
required care, judgment and responsibility . . ." to hold an
Airman Certificate. It determined, inter alia, that Emerson had

operated an aircraft that was not in airworthy condition, having

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complaint sought a $10,000 penalty for each alleged violation.

An amended complaint later increased the number of asserted

violations to fifty-three.

Emerson filed several motions seeking to dismiss the

complaint, arguing, inter alia, that requiring him to defend the

same allegations in both the administrative and civil proceedings

constituted a violation of the Double Jeopardy Clause of the

Fifth Amendment. He also claimed that the monetary penalties

sought were in violation of the Excessive Fines Clause. The

district court denied the motions, finding that the FAA's

administrative action was remedial in nature, rather than

punitive, and that double jeopardy principles therefore were not

implicated. The court made no explicit ruling on the excessive

fines issue.

In March 1996, Emerson and the United States stipulated to

the district court that twenty-six of the flights alleged to be

unlawful were operated in violation of applicable federal

aviation law and regulations. Eleven of those were round-trip

flights, and thus were counted as two separate violations,

bringing the total number of admitted violations to thirty-

failed to repair a crack that he knew about and that rendered the
aircraft unairworthy. The FAA found that an emergency in air
safety existed, and it ordered an immediate revocation of both
certificates. On appeal, the National Transportation Safety
Board upheld the revocations.

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seven.3 The stipulation left for trial only the issue of the

appropriate penalty.

A two-day bench trial was held in April 1996. The court

rejected Emerson's claim that he held a good-faith belief that

the flights were lawful, and imposed a civil penalty of $5,000

per violation, for a total of $185,000. In reducing the penalty

from that requested by the government (at that point, $8,500 per

violation, or $314,500), the court noted Emerson's limited

financial ability to pay the higher amount. It also found,

however, that a significant civil penalty was appropriate in

light of the nature, circumstances, extent and gravity of

Emerson's violations, his knowledge or reckless disregard of the

law, his extensive enforcement history, and the effect of a large

penalty in deterring future violators and fostering respect for

and compliance with the law.4

This appeal followed. Emerson again asserts that imposition

of the civil penalty subsequent to the FAA administrative action

violates the Double Jeopardy Clause, and contends that the amount

of that penalty transgresses the Excessive Fines Clause.

3 Emerson argued before the district court that each round-
trip flight constituted only a single violation. The government
contended that the applicable precedent required them to be
counted as two separate violations. Emerson does not raise this
argument on appeal, and we therefore do not consider it.

4 The court also issued a permanent injunction that, inter

alia, barred Emerson and Emerson Aviation from performing any

aviation-related acts without proper FAA authority to do so.

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II. Excessive Fines Issue5

The Excessive Fines Clause protects individuals against

abusive penalties imposed by the government. See generally

Austin v. United States, 509 U.S. 602, 606-12 (1993); id. at 627

(Scalia, J., concurring in part and concurring in the judgment);

Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257,

266-68 (1989). Although precedent provides no precise guideposts

for evaluating a fine's "excessiveness," Justice Scalia has

observed that "the touchstone is value of the fine in relation to

the offense," Austin, 509 U.S. at 627 (Scalia, J., concurring).

See also Harmelin v. Michigan, 501 U.S. 957, 978 n.9 (1991)

(opinion of Scalia, J.) (assuming for the sake of argument that

"excessive fines" means "disproportionate fines").

Here, the court imposed a fine one-half the size of that

permitted by the relevant statute, assessing $5,000 for each of

Emerson's thirty-seven admitted violations rather than the

statutory maximum of $10,000 per violation. See 49 U.S.C.

46301(a)(2).6 We are persuaded that this penalty, though

substantial, is constitutionally permissible. Cf. United States

5 The government contends that Emerson waived this issue by
failing to raise it after the district court imposed a specific

fine, asserting only an abstract claim in pretrial motions that
the maximum penalty permitted by statute was excessive. We have
doubts that the claim was preserved, but nonetheless choose to
consider it briefly. See Cheffer v. Reno, 55 F.3d 1517, 1523

(11th Cir. 1995) ("[C]hallenges under the Excessive Fines clause
are . . . generally not ripe until the actual, or impending,
imposition of the challenged fine.").

6 At the time of Emerson's violations in 1992 and 1993, this
provision was codified at 49 U.S.C. App. 1471.

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v. Pilgrim Market Corp., 944 F.2d 14, 22 (1st Cir. 1991)

(upholding penalty against Eighth Amendment challenge where fine

was less than half the statutory maximum and one-half of the

government's recommendation).

We note initially that the district court thoroughly

explored Emerson's explanation for the underlying violations, as

well as his enforcement history, and found a pattern of

persistent disregard of government regulation. The court was

unimpressed with Emerson's evidence that he held a good-faith

belief that the flights were lawful,7 and found "particularly

unpersuasive" evidence of reliance on advice from counsel. It

further rejected Emerson's contention that the large number of

admitted violations and the record of his past regulatory

problems overstated the severity of his actual conduct:

It is of no moment that many of the violations involved
record-keeping or other technical functions and that
none resulted in serious personal injury. The federal
aviation laws safeguard public safety as a collective
whole and compliance with the entire regulatory scheme,
and not just the rules governing matters that have an
immediate and direct effect on life and limb, is
presumed. The maintenance of proper records and like
tasks is a crucial component in the prevention of
accidents and, as such, the failure to comply cannot be
viewed as a benign violation simply because of the
clerical or technical nature of the violated
regulations.

Opinion at 13-14.

We detect no flaw in the court's reasoning that even

technical air safety rules are important, and no clear error in

7 The court felt that his explanations were based on
"convenient interpretations" of federal regulations that
"strain[ed] reason and common sense". Opinion at 11.

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its finding that Emerson did, in fact, engage in repeated, highly

culpable conduct. See Sullivan v. Young Bros. & Co., 91 F.3d

242, 246-47 (1st Cir. 1996). With this supportable foundation,

the conclusion the court drew -- that the latest series of

violations warranted a significant penalty -- is equally

unassailable. Moreover, the court recognized that a substantial

penalty would be important as a deterrent to potential violators,

since "aviation safety rests in large part on voluntary

compliance by those who, in all probability, will never face the

regulatory scrutiny encountered by the defendants." Opinion at

15.

Despite these conclusions inclining it toward a penalty at

or near the magnitude requested by the government, the court did

not order such a fine. It gave offsetting effect to Emerson's

limited financial resources. Although he continues to earn

income from an aviation business and has ownership interests in

various real estate and airplanes, the evidence indicated that

the properties are heavily mortgaged and that Emerson also owes a

substantial tax debt. Based on his economic circumstances alone,

the court reduced the penalty from the government's proposed

$8,500 per violation to $5,000 per violation, producing the total

fine of $185,000.

We are hardpressed to see the "excessiveness" in this

thoughtfully levied fine. First, as noted earlier, the

"touchstone" is the value of the fine in relation to the

particular offense, not the defendant's means. Moreover, though

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Emerson appears at present not to have the resources to pay the

entire penalty, he is employed and, still in his early 50s,

should have longterm future earning potential.8 In addition, the

continuing nature of the obligation has significance beyond the

amount; the fact that the debt will remain with Emerson for some

time to come is a sobering reality that should discourage him

(and deter others) from committing future violations.

Additionally, if Emerson's future prospects become more clearly

limited, and the fine consequently becomes more clearly onerous,

no barrier apparently exists to his seeking an amelioration from

the district court.

In short, the district court's judgment reflects a careful

balance between Emerson's means and the justifiable punishment

for these latest violations. Thus, the fine bears a reasonable

relationship not only to the offense but also to the offender.

Consequently, it does not offend the Constitution.9

8 Emerson testified at trial that New Emerson offers various
aviation services to the public, including scenic flights,
aircraft maintenance, hangar services, mechanic's work, and
flight instruction. Although, as noted earlier, Emerson
presently has no ownership interest in the company, New Emerson
acquired all of Emerson Aviation's affairs and his future
relationship with the company therefore remains to be seen.

9 Emerson argues that in determining excessiveness we must
consider whether the penalty imposed here is disproportionate to
such penalties in similar cases, and offers in comparison several
cases involving regulatory violations that he claims demonstrate
the unfairness of his punishment. We note, firstly, that the
proportionality concern in an excessive fines case is generally
considered to be a question of "whether the fine imposed is
disproportionate to the crime committed," Harmelin v. Michigan,

501 U.S. 957, 1009 (1991) (White, J., dissenting), not whether a
given fine is disproportionate to other fines imposed on other
defendants. Although review of penalties in similar cases may be

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III. Double Jeopardy Issue

Emerson alternatively seeks to invalidate the fine under the

Double Jeopardy Clause, claiming that it constituted double

punishment in light of the earlier administrative sanction of de-

certification. There is no contention that the civil fine is not

punitive; the issue is the nature of the FAA penalty that

preceded it. If the certificate revocation is remedial, rather

than punitive, the later fine is permissible.

We recently have established that, in determining whether an

administrative action constitutes punishment for double jeopardy

purposes, a court must consider

the totality of the circumstances, including the source
of the authority under which the debarment is
imposable, the goals underpinning the authorizing
statute, the order itself, the purposes it serves, and
the circumstances attendant to its promulgation.

United States v. Stoller, 78 F.3d 710, 721 (1st Cir. 1996)

(administrative debarment by FDIC); see also Allen v. Attorney

General of State of Maine, 80 F.3d 569, 573 (1st Cir. 1996)

(driver's license suspension). We have recognized that "the

force of a double jeopardy claim depends upon the particular

circumstances of each individual case," id. at 576, and have

identified "[t]he pivotal question" to be "whether the sanction,

as applied, exacts rough remedial justice," id. at 576-77

(footnote omitted).

instructive in evaluating the range of penalties appropriate for
a given crime, we think it of limited assistance in judging
whether a given fine exceeds constitutional bounds.

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The district court thoroughly explored the double jeopardy

question within this framework. See Order of March 29, 1996. We

see no need to revisit its conclusion that the FAA's authority

and goals are anchored in a concern for air safety. See Order at

6-7; see also, e.g., 49 U.S.C.A. 44701 (previously 49 U.S.C.

App. 1421).10

The court further examined whether the FAA's specific

enforcement action in this case was tailored to the remedial

goals of federal aviation law, and determined that it was. The

court noted that the FAA's investigation of Emerson revealed a

number of unsafe and unlawful practices, and observed that the

decision to limit the defendant's flying privileges was a

"logical[]" response. It further noted that Emerson was not

subject to a monetary fine, which, in some instances, would

suggest a punitive goal.

Analogizing the FAA's action here to the administrative

decision in Allen to suspend the driver's license of an

individual arrested for drunk driving, see 80 F.3d at 574, the

district court noted our holding that the license suspension

10 This section, inter alia, directs the FAA Administrator

to "promote safe flight of civil aircraft in air commerce" by
prescribing minimum standards "in the interest of safety" for the
design and construction of aircraft, regulations "in the interest
of safety" for inspecting and servicing aircraft, and minimum
safety standards for air carriers. 49 U.S.C.A. 44701 (a), (b).
When prescribing regulations and standards, the Administrator
must consider "the duty of an air carrier to provide service with
the highest possible degree of safety." Id. at (d)(1). The

Administrator is further charged with acting "in a way that best
tends to reduce or eliminate the possibility or recurrence of
accidents in air transportation." Id. at (c).

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"`represents a reasonable effort to protect the public from

motorists who have demonstrated a dangerous propensity to drink

before they drive.'" It then continued:

The safety concerns underlying federal aviation laws,
no less than those which give rise to state motor
vehicle laws, strongly suggest that "[t]he sanction [of
certificate or license revocation] therefore is
principally in service to a remedial goal."

Order at 9.

We share the district court's perspective that the FAA's

actions here were driven by its remedial responsibilities.

Indeed, the specific language of the agency's order reflects this

focus on considerations of air safety rather than on punishment:

By reason of the foregoing facts and circumstances, the
Administrator has determined that you are not qualified
to hold an Airman Certification, in that you lack the
required care, judgment, and responsibility. Therefore,
the Administrator finds that the safety in air commerce
or air transportation and the public interest require
the revocation of your Airman Certificate No. 2130849,
with all its ratings and privileges. Furthermore, the
Administrator finds that an emergency exists and safety
in air commerce or air transportation requires the
immediate effectiveness of this Order.

FAA's Emergency Order of Revocation at 5. The "facts and

circumstances" to which the order referred included both details

of the current violations and a listing of prior violations.

Although it unquestionably is true that a governing authority

might view this record of unlawful conduct as warranting

punishment, the emphasis here is not on slapping Emerson's wrist

but on preventing him from continuing to present a safety risk.

He is deprived of his Airman Certification not as punishment for

bad conduct, but because he is "not qualified." The immediate

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implementation of the order further buttresses the judgment that

it originated out of a concern for safety, not retribution.

Emerson acknowledges that the language of the statute

authorizing the license revocation, 49 U.S.C.A. 44701,

suggests that the FAA's only purposes are non-punitive: to ensure

safety and competence in aviation. He contends, however, that

the most severe of the available enforcement options -- including

de-certification -- are, in fact, punitive, and he cites in

support a 1994 memorandum describing aspects of the FAA's

"Compliance and Enforcement Program." See App. at 311-314. The

document notes that the FAA's program ranges from educational and

remedial efforts to "punitive legal enforcement remedies,

including criminal sanctions." Id. at 312. He cites in

particular a section of the memorandum that describes

"progressive discipline," starting with a letter of correction to

a first-time violator and culminating in "a punitive legal

enforcement sanction, i.e., a civil penalty or certificate

suspension," for offenders who fail to sustain compliance with

the law. Id. at 313-14.

On the basis of this memorandum, Emerson points out that the

FAA Administrator plainly views his enforcement power to include

punitive and deterrent measures, and he maintains that it was

this punitive power that was used against him in the revocation

order. We addressed a somewhat similar argument in Allen, 80

F.3d at 574, where the petitioner contended that the increasing

length of a driver's license suspension based on the number of

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offenses reflected a punitive aim. We acknowledged there that

tying the severity of a penalty to the number of offenses may

indicate a retributive intent, but pointed out that it also may

reflect a protective intent. The escalating suspensions, we

observed, reflected a desire to protect the public from those

who, on average, present the greatest safety hazard -- recidivist

drunk drivers.

So, too, here. Following the reference to "punitive legal

enforcement sanction[s]" in the FAA memorandum stressed by

Emerson, see id. at 314, the document states that, "Repetitive

violations by a certificate holder may even demonstrate a lack of

qualification warranting certificate revocation." (Emphasis

added.) This is precisely the basis given for revocation of

Emerson's certificate. See supra at 10 ("[T]he Administrator has

determined that you are not qualified to hold an Airman

Certification, in that you lack the required care, judgment and

responsibility."). Thus, making our conclusion even more

compelling than in Allen, the remedial nature of the

administrative sanction is explicit.

Characterizing the sanction as primarily remedial does not,

of course, mean that we must conclude that it has had neither

deterrent nor punitive effect. Unquestionably, the loss of his

license has had a severe impact on Emerson and his aviation

business. It is equally apparent that the FAA's more serious

enforcement measures are designed with deterrence at least

partially in mind. Yet, we previously have recognized that "the

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fact that something akin to punishment occurs along with, and

incidental to, a sanction's overriding remedial purpose will not

transform a permissible civil penalty into a prohibited multiple

punishment," Stoller, 78 F.3d at 724. Likewise, the fact that

deterrence is among the objectives underlying a civil sanction

"is merely one factor to be taken into account in the decisional

calculus," Allen, 80 F.3d at 576 (citing Bae v. Shalala, 44 F.3d

489, 494 (7th Cir. 1995)). Indeed, deterrence should be an

anticipated byproduct of aggressive safety enforcement.

We note, finally, Emerson's reliance on Pangburn v. Civil

Aeronautics Bd., 311 F.2d 349, 354-55 (1st Cir. 1962), where we

held that the Civil Aeronautics Board could order revocation as a

sanction for "disciplinary purposes," apart from the

qualifications or competency of a pilot. Having such authority

does not mean, however, that it is wielded in every case of

revocation. Here, as we have explained, the evidence persuades

us that the sanction "displays colors more consistent with the

remedial end of the spectrum," Stoller, 78 F.3d at 721.

Consequently, the district court did not err in refusing to

dismiss the civil action on double jeopardy grounds.

Affirmed.

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