Zukas v. Hinson

United States Court of Appeals,

Eleventh Circuit.

No. 96-5137

Non-Argument Calendar.

Anton G. ZUKAS, Petitioner,

v.

David R. HINSON, Administrator, Federal Aviation Administration, Respondent.

Oct. 21, 1997.

Petition for Review of a Final Order of the National Transportation Safety Board.

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

BIRCH, Circuit Judge:

In this petition for review of a final order by the National Transportation Safety Board

("NTSB"), we determine whether revocation of a commercial pilot certificate by the Federal

Aviation Administration ("FAA") after petitioner's conviction of a drug crime that involved an

aircraft and sentence of imprisonment violates the ex post facto and double jeopardy prohibitions

under the federal Constitution. Additionally, we review procedural challenges. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 5, 1986, petitioner, Anton G. Zukas, piloted a Piper Navajo, civil aircraft on

a flight from Miami, Florida, to Austin, Texas. When the plane was searched by a Drug

Enforcement Administration agent, two bags of cocaine were found. Zukas was convicted of

conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1)1 and

1
Under § 841(a)(1), it is "unlawful for any person knowingly or intentionally ... to
manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance." 21 U.S.C. § 841(a)(1) (emphasis added). In his petition to
this court, Zukas has abandoned his argument before the NTSB that the FAA Administrator
failed to prove that he acted knowingly or willfully in violating the applicable statutory and
regulatory provisions. See Rogero v. Noone, 704 F.2d 518, 520 n. 1 (11th Cir.1983)(stating that
issues that are not pursued on appeal are deemed abandoned).
846 in the United States District Court for the Western District of Texas.2 He was sentenced to

fifteen years of imprisonment and a fine of $10,000.00. The Fifth Circuit Court of Appeals affirmed

his conviction. See United States v. Zukas, 843 F.2d 179 (5th Cir.1988).

Because of Zukas's drug conviction in connection with his operation of an aircraft

transporting cocaine, the Administrator of the FAA revoked his Commercial Pilot Certificate No.

263743302 pursuant to 49 U.S.C. §§ 44709 (1994)3 and 14 C.F.R. § 61.15(a) (1995)4 on May 11,

1995. Zukas appealed the revocation of his commercial pilot certificate to the NTSB and requested

a hearing with an administrative law judge ("ALJ"). The FAA Administrator filed the revocation

order as the agency's complaint in the appeal and moved for summary judgment. Although Zukas

conceded his conviction, he filed a motion to dismiss and argued that the FAA Administrator had

failed to prove that the revocation of Zukas's pilot certificate was warranted under 49 U.S.C. § 44709

and 14 C.F.R. § 61.15(a) and that the revocation order was barred by the six-month limitations

period. He also asserted that the revocation order violated the constitutional protection against ex

post facto laws and that it constituted multiple punishment in violation of the Double Jeopardy

Clause. The ALJ determined that the revocation of Zukas's pilot certificate was warranted, but he

reserved judgment as to the appropriate sanction. Thus, the ALJ granted partial summary judgment

for the FAA Administrator and set a hearing to decide the sanction issue. The ALJ denied Zukas's

motion to dismiss. Zukas then filed a notice of appeal to the full board of the NTSB.

2
The facts concerning Zukas's participation in the cocaine trafficking conspiracy are
recounted in the Fifth Circuit's opinion affirming his conviction. See United States v. Zukas, 843
F.2d 179, 180-81 (5th Cir.1988).
3
3 Section 44709(b)(1)(A) authorizes the FAA Administrator to revoke a pilot certificate if he
"decides after conducting a[n]. ... investigation that safety in air commerce or air transportation
and the public interest require that action." 49 U.S.C. § 44709(b)(1)(A).
4
Section 61.15(a) provides that the FAA Administrator may revoke a certificate if a pilot is
convicted of an offense relating to transporting or importing controlled substances. In relevant
part, § 61.15 provides that "[a] conviction for the violation of any Federal or state statute relating
to the growing, processing, manufacture, sale, disposition, possession, transportation, or
importation" of controlled substances "is grounds for ... [s]uspension or revocation of any
certificate or rating issued under this part." 14 C.F.R. 61.15(a)(2).

2
 During the proceedings before the ALJ, the FAA Administrator issued an amended

revocation order. The ALJ, however, did not receive this order before ruling on the parties' motions.

The only difference between the original and amended orders was an additional statutory basis for

the revocation of Zukas's pilot certificate, 49 U.S.C. § 44710(b).5 Zukas filed a separate notice of

appeal from the amended order and, alternatively, requested that the order be joined with his appeal

from the ALJ's decision. He also filed a motion to dismiss the amended order as untimely,

duplicitous, and barred because of his appeal to the full board of the NTSB. The FAA Administrator

filed a copy of the amended revocation order as his amended complaint and an amended summary

judgment motion. The ALJ vacated only the part of his earlier order granting partial summary

judgment to the FAA Administrator. Treating Zukas's notice of appeal as a request for an

interlocutory appeal, the ALJ refused to certify the record for the appeal, and he denied Zukas's

motion to dismiss the FAA Administrator's amended complaint.

The ALJ subsequently granted summary judgment for the FAA Administrator based on the

undisputed allegations of the amended complaint and 49 U.S.C. § 44710(b). Zukas appealed to the

full board of the NTSB and made the same arguments advanced to the ALJ. The NTSB denied the

appeal, adopted the ALJ's order denying Zukas's motion to dismiss, and affirmed the ALJ's decision

because of its conclusion that Zukas's pilot certificate was revocable under 49 U.S.C. § 44710(b) and

5
Section 44710(b) mandates that the FAA Administrator revoke the certificate of a pilot

convicted, under a law of the United States or a State related to a controlled
substance ... of an offense punishable by death or imprisonment for more than one
year if the Administrator finds that—

(A) an aircraft was used to commit, or facilitate the commission of, the
offense; and

(B) the individual served as an airman, or was on the aircraft, in
connection with committing, or facilitating the commission of, the
offense.

49 U.S.C. § 44710(b).

3
14 C.F.R. 61.15(a). Zukas petitions this court for review of the final order by the NTSB that

affirmed summary judgment granted to the FAA.

II. ANALYSIS

A. Review Standards

This court has jurisdiction to review a final order of the NTSB. See 49 U.S.C. § 1153(a);

Oceanair of Florida, Inc. v. National Transp. Safety Bd., 888 F.2d 767, 768 (11th Cir.1989) (stating

that the revocation of an operating certificate by the NTSB is "directly appealable to this court").

We uphold a decision by the NTSB unless it is "arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law" or the challenged decision is "contrary to constitutional right,

power, privilege, or immunity." 5 U.S.C. § 706(2)(A), (B). "[W]hen reviewing an agency decision

under the "arbitrary and capricious' standard, we must defer to the wisdom of the agency provided

[its] decision is reasoned and rational"; we are not authorized to substitute our judgment for that of

the agency. McHenry v. Bond, 668 F.2d 1185, 1190 (11th Cir.1982). The NTSB has "broad

discretion" in its determination of the appropriate sanction for violation of FAA regulations. Cobb

v. National Transp. Safety Bd., 572 F.2d 202, 204 (9th Cir.1977) (per curiam). The factual findings

of the NTSB are binding on this court if supported by substantial evidence. See 49 U.S.C. §

46110(c). We review the interpretation of constitutional and statutory provisions by the NTSB de

novo. See Bennett v. National Transp. Safety Bd., 66 F.3d 1130, 1136 (10th Cir.1995); see also
Essery v. National Transp. Safety Bd., 857 F.2d 1286, 1288 (9th Cir.1988) (holding that a court of

appeals reviews de novo purely legal questions).

B. Procedural Challenges

1. Notice

Zukas argues that the FAA Administrator's amended order of revocation violated the notice

requirement of 49 U.S.C. § 44709(d) because it was issued after he appealed to the full board of the

NTSB. Zukas received notice prior to the revocation of his commercial pilot certificate and appealed

to the NTSB in accordance with 49 U.S.C. §§ 44709(c), (d) and 44710(c), (d), which provide that

4
the FAA notify the holder of a pilot certificate of the charges against him, allow the holder an

opportunity to be heard before issuing a revocation order, and permit the holder to appeal the order

to the NTSB. Furthermore, when Zukas appealed the ALJ's decision to the full board of the NTSB,

the ALJ had granted only partial summary judgment and had set a hearing to determine the

appropriate sanction; the ALJ had not entered a final decision. Under the administrative

regulations, the ALJ's ruling on the parties' motion may not be appealed until the ALJ considers the

entire proceedings or certifies the record for an appeal to the full board of the NTSB. See 49 C.F.R.

§§ 821.16, 821.35(a), 821.41, 821.47 (1995). In this case, the ALJ had retained jurisdiction and had

not certified the record to the NTSB at the time that the FAA Administrator filed the agency's

amended complaint.

Furthermore, Zukas's reliance on Oceanair is misplaced. In Oceanair, this court determined

that the FAA violated section 609(a) of the Federal Aviation Act of 1958, 49 U.S.C. § 1429(a)

(recodified as amended at 49 U.S.C. §§ 44709(c), (d) & 44710(c), (d) (1994)) "by amending its

complaint against Oceanair at the appeal stage to include new charges and a revised order without

first granting Oceanair an opportunity to be heard by the FAA on the new charges." Oceanair, 888

F.2d at 768-69 (emphasis added). Unlike the complaint in Oceanair, the FAA's amended order of

revocation against Zukas was identical to the original revocation order, except that it added 49

U.S.C. § 44710(b) to augment 14 C.F.R. § 61.15(a) in requiring revocation of a pilot's operating
certificate when the holder is convicted of a federal or state crime related to controlled substances.

Therefore, we find no merit in Zukas's contention that the FAA Administrator's amended order of

revocation violated 49 U.S.C. §§ 44709(c), (d) and 44710(c), (d).

2. Timeliness of the Pilot Certificate Revocation Order

Zukas also argues that the FAA failed to issue its pilot certificate revocation order within

six months of the time that the FAA knew or should have known that his conviction was the basis

5
for revocation.6 Section 821.33 of the NTSB's Rules of Practice in Air Safety Proceedings, known

as the "stale complaint rule," provides that "[w]here the [FAA's] complaint states allegations of

offenses which occurred more than 6 months prior to the Administrator's advising [the pilot

certificate holder] as to reasons for proposed action ... [the pilot certificate holder] may move to

dismiss such allegations...." 49 C.F.R. § 821.33. By its specific terms, however, the stale complaint

rule is preempted when there are allegations of the pilot certificate holder's lack of qualifications.7

See id. § 821.33(a), (b). Since, under 49 U.S.C. § 44710 and 14 C.F.R. § 61.15(a), the FAA

Administrator may revoke a pilot certificate if the holder is convicted of a crime related to the

transporting of controlled substances, Zukas's conviction for conspiracy to possess and to distribute

cocaine implicated his qualifications to retain his pilot certificate. We defer to an administrative

agency's reasonable interpretation of its own regulations. See Georgia Pacific Corp. v.

Occupational Safety & Health Review Comm'n, 25 F.3d 999, 1004 (11th Cir.1994) (per curiam).

Because the FAA Administrator's complaint concerned Zukas's qualifications to hold a pilot

certificate, the six months limitations period established in 49 C.F.R. § 821.33 is inapplicable, and

the ALJ correctly denied Zukas's motion to dismiss the FAA Administrator's complaint as untimely.

6
Zukas raises for the first time on appeal that the pilot certificate revocation order was
untimely under the two-year statute of limitations in 49 U.S.C. § 46301(d)(7)(C) and that the
FAA Administrator's claim of lack of qualifications is an attempt to circumvent the stale
complaint rule. Because Zukas failed to raise these objections before the ALJ or the NTSB, we
need not address them. See 49 U.S.C. § 46110(d). Significantly, § 46301 applies generally to
civil monetary penalties imposed by the FAA and not to revocations of certificates. Section
46301(d)(7)(A) specifically states that the FAA Administrator may impose a civil penalty, after
notice and an opportunity to be heard, on individuals who are not acting as FAA certificate
holders. See 49 U.S.C. § 46301(d)(7)(A) ("The [FAA] Administrator may impose a penalty on
an individual (except an individual acting as a pilot, flight engineer, mechanic, or repairman)
only after notice and an opportunity for a hearing on the record." (emphasis added)). By its
explicit terms, § 46301(d)(7)(C) is unrelated and inapplicable to FAA revocations of pilot
certificates.
7
When the complaint alleges the pilot certificate holder's lack of qualifications, on the
certificate holder's motion, the ALJ is required to determine initially whether the complaint
presents an issue of lack of qualifications "if any or all of the allegations, stale and timely, are
assumed to be true." 49 C.F.R. § 821.33(b)(1). If an issue of lack of qualifications is presented
by the complaint, then the matter proceeds to a hearing on the issue of the certificate holder's
qualifications. See id. § 821.33(b)(2).

6
C. Ex Post Facto Concern

Zukas contends that the FAA's retroactive application of 49 U.S.C. §§ 44709 and 44710,

which were enacted in 1994, over seven years after his 1987 conviction, was an unconstitutional ex

post facto violation.8 See Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d

351 (1987) (explaining that the Ex Post Facto Clause applies only to retrospective laws). Section

44710(b) requires the FAA Administrator to revoke the pilot certificate of an individual who is

convicted of a federal or state statute related to a controlled substance, other than simple possession,

if an aircraft was used to commit or to facilitate the crime and the certificate holder served as an

airman or was on the aircraft involved in the drug crime. The policy of revoking a pilot certificate

because of a holder's conviction for drug trafficking by aircraft predates the recodification that

became section 44710(b). In 1984, Congress amended the Federal Aviation Act of 1958 by enacting

the Aviation Drug-Trafficking Control Act, which is the basis for 49 U.S.C. § 44710, "to provide

for the revocation of the airman certificates and for additional penalties for the transportation by

aircraft of controlled substances." Pub.L. No. 98-499, 98 Stat. 2312, 2312 (1984). The original

1984 legislation expressly provided that it was applicable to actions and violations occurring after

the date of enactment, October 19, 1984. See Pub.L. No. 98-499, § 7, 98 Stat. at 2316. Contrary

to Zukas's argument, Congress mandated the revocation of pilot certificates for holders' convictions

for drug crimes prior to Zukas's November 5, 1986, drug trafficking that was the basis of his

conviction.

Significantly, neither section 44709 nor section 44710 was enacted as new law in 1994.

Instead, these statutes were recodified as part of the legislative revisions of Title 49 of the United

States Code on July 5, 1994. See Pub.L. No.103-272, 108 Stat. 745 (1994). The purpose of this

recodification was "to restate in comprehensive form, without substantive change, certain general

and permanent laws related to transportation and to enact those laws as subtitles II, III, and V-X of

8
The Ex Post Facto Clause states: "No ... ex post facto Law shall be passed." U.S. Const. art.
I, § 9, cl. 3.

7
title 49, United States Code, and to make other technical improvements in the Code." H.R.Rep. No.

103-180, at 1 (1993) (emphasis added), reprinted in 1994 U.S.C.C.A.N. 818, 818. Because Zukas's

conviction occurred after the enactment of both the Federal Aviation Act of 1958 and the Aviation

Drug-Trafficking Control Act of 1984, there was no ex post facto application of either section 44709

or section 44710. See Herenandez v. National Transp. Safety Bd., 15 F.3d 157, 158-59 (10th

Cir.1994) (determining that, where statutes or regulations do not involve policy changes, the Ex Post

Facto Clause is not implicated).

D. Double Jeopardy Argument

Zukas finally contends that the revocation of his pilot certificate violated the Double

Jeopardy Clause9 of the Fifth Amendment because he already had been punished by imprisonment

and a civil fine for his participation in the cocaine distribution conspiracy. Initially, we note that

nothing in the record shows that Zukas was subjected to civil forfeiture or was ordered to pay a civil

penalty. As part of his sentence, the trial court ordered him to pay a criminal fine of $10,000.00.

"[T]he Double Jeopardy Clause protects against three distinct abuses: a second prosecution

for the same offense after acquittal; a second prosecution for the same offense after conviction; and

multiple punishments for the same offense." United States v. Halper, 490 U.S. 435, 440, 109 S.Ct.

1892, 1897, 104 L.Ed.2d 487 (1989). With respect to the third, relevant application, the Court held

"that under the Double Jeopardy Clause a defendant who already has been punished in a criminal
prosecution may not be subjected to an additional civil sanction to the extent that the second

sanction may not fairly be characterized as remedial, but only as a deterrent or retribution." Id. at

448-49, 109 S.Ct. at 1902. The test of "whether a given civil sanction constitutes punishment in the

relevant sense requires a particularized assessment of the penalty imposed and the purposes that the

penalty may fairly be said to serve." Id. at 448, 109 S.Ct. at 1901; see Department of Revenue v.

Kurth Ranch, 511 U.S. 767, 777 n. 14, 114 S.Ct. 1937, 1945 n. 14, 128 L.Ed.2d 767 (1994)

9
The Double Jeopardy Clause states: "[N]or shall any person be subject for the same offense
to be twice put in jeopardy of life or limb." U.S. Const. amend. V.

8
("[W]hether a sanction constitutes punishment is not determined from the defendant's perspective,

as even remedial sanctions carry the "sting of punishment.' " (quoting Halper, 490 U.S. at 447 n. 7,

109 S.Ct. at 1901 n. 7)). Because double jeopardy applies to punitive and not to remedial sanctions,

see Manocchio v. Kusserow, 961 F.2d 1539, 1541 (11th Cir.1992), a civil sanction that does not

consist of money damages requires a court to consider the penalty imposed and the purposes of the

penalty to determine if a legitimate, remedial purpose is served, see United States v. Reed, 937 F.2d

575, 577-78 (11th Cir.1991). Only when the civil sanction serves a retributive or deterrent purpose

does the sanction constitute punishment and violate the Double Jeopardy Clause. See id.; United

States v. Walker, 940 F.2d 442, 443 (9th Cir.1991) ("A civil penalty is punishment if it cannot fairly

be said solely to serve a remedial purpose."). Revoking a pilot certificate by the FAA to ensure air

safety by removing an unqualified pilot from the ranks of those who hold pilot certificates granted

by the FAA serves a remedial purpose. The FAA regulations in effect at the time that Zukas's pilot

certificate was revoked provided that "[r]evocation of a [pilot] certificate is used as a remedial

measure when the certificate holder lacks the necessary qualifications to hold the certificate," and

that "[r]evocation is appropriate whenever the certificate holder's conduct demonstrates a lack of the

degree of care, judgment, or responsibility required of the holder of such a certificate." Federal

Aviation Admin., U.S. Department of Transp., Compliance and Enforcement Program, Order

2150.3A, at WW 206(c), 206(c)(1) (as amended Apr. 20, 1994); see Hite v. National Transp. Safety
Bd., 991 F.2d 17, 20 (1st Cir.1993) (using an earlier version of the same FAA regulation).

The relevant legislative history also reveals a remedial purpose. The Civil Aeronautics Act

of 1938 provided:

The [Civil Aeronautics] Authority may ... alter, amend, modify, or suspend, in whole
or in part, any ... airman certificate ... if the interest of the public so requires, or may revoke,
in whole or in part, any such certificate for any cause which, at the time of revocation, would
justify the Authority in refusing to issue to the holder of such certificate a like certificate.

Civil Aeronautics Act of 1938, ch. 601, 52 Stat. 973, 1011 (codified at 49 U.S.C. § 559 (1940))

(repealed 1958).

9
 The "principal purpose" of the Federal Aviation Act of 1958 was to give the new federal

agency, the FAA, which replaced the Civil Aeronautics Administration, "powers adequate to enable

it to provide for the safe and efficient use of the navigable airspace by both civil and military

operations," including authority over airman certificates. H.R.Rep. No. 2360, at 1 (1958), reprinted

in 1958 U.S.C.C.A.N. 3741, 3741; see 49 U.S.C. § 44701(a) (providing that the FAA Administrator

is charged with "promot[ing] safe flight of civil aircraft in air commerce"). The Aviation Drug-

Trafficking Control Act of 1984 expanded the FAA's authority as part of the war against drugs and

enabled it to combat aerial trafficking in controlled substances by authorizing the revocation of the

certificates of pilots involved in drug trafficking to prevent the recurrence of criminal drug

trafficking by giving the FAA authority to revoke the certificates of pilots participating in drug

trafficking. See S.Rep. No. 98-228, at 1 (1984), reprinted in 1984 U.S.C.C.A.N. 3916, 3916 ("The

bill is intended to expand the powers of the Federal Aviation Administration (FAA) to combat aerial

trafficking in drugs. The bill accomplishes this purpose by authorizing FAA revocation of the

airman certificate and aircraft registration certificate of those involved in drug trafficking."). There

is no evidence that Congress had a retributive or deterrent purpose in providing for the revocation

of pilots' certificates in any of the legislation that preceded the current law, 49 U.S.C. § 44709;

instead, congressional impetus was remedial to ensure air safety and competence in aviation.

Because "the FAA's authority and goals are anchored in a concern for air safety," United
States v. Emerson, 107 F.3d 77, 82 (1st Cir.1997), there is a reasonable relation between conviction

for violating a drug law and flying safety. "[I]t is reasonable to conclude that a pilot who has

violated a drug trafficking statute is also likely to violate regulations concerning air safety." Pinney

v. National Transp. Safety Bd., 993 F.2d 201, 203 (10th Cir.1993); see Walters v. McLucas, 597

F.2d 1230, 1232 (9th Cir.1979) (per curiam) (upholding revocation of a pilot's certificate because

he had been convicted of possessing marijuana for sale and finding a "rational relation between a

conviction for the possession of drugs for sale and the unsafe use of aircraft for drug smuggling").

10
Conviction for violating drug laws "clearly demonstrates a tendency to act without inhibition in an

unstable manner without regard to the rights of others." 38 Fed.Reg. 17,491, 17,492 (1973).

The FAA revoked Zukas's pilot certificate pursuant to 49 U.S.C. §§ 44709(b), which

provides for air safety in the public interest, and section 44710(b) and 14 C.F.R. § 61.15(a), which

provide that a pilot's certificate is revocable if the holder has been convicted of a federal or state

crime involving a controlled substance. Zukas does not dispute his conviction for conspiracy to

possess and distribute cocaine in violation of 21 U.S.C. §§ 841(a) and 846. Because "[r]evocation

of a pilot certificate is not a criminal sanction ....[,but] it is a remedy imposed to enhance air safety

and to promote the public interest," Kolek v. Engen, 869 F.2d 1281, 1288 (9th Cir.1989), it cannot

constitute punishment for double jeopardy purposes, see Walker, 940 F.2d at 443-44. Therefore,

Zukas's double jeopardy argument fails.

III. CONCLUSION

Zukas has petitioned for our review of the NTSB decision affirming the ALJ's granting

summary judgment to the FAA Administrator to revoke Zukas's pilot certificate because of his

conviction for conspiracy to distribute cocaine. For the reasons stated herein, his procedural, ex post

facto, and double jeopardy challenges are unavailing. We AFFIRM.

11