USCA1 Opinion
United States Court of Appeals
For the First Circuit
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No. 96-1627
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ALAN EMERSON, INDIVIDUALLY, AND
D/B/A EMERSON AVIATION,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
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Before
Cyr, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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John P. Kalled for appellant.
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Patrick M. Walsh, Assistant United States Attorney, with whom
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Paul M. Gagnon, United States Attorney, was on brief for appellee.
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February 26, 1997
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COFFIN, Senior Circuit Judge. Appellant Alan D. Emerson has
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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
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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authorization to conduct such flights had been revoked.2 The
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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
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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
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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-
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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.
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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
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alia, barred Emerson and Emerson Aviation from performing any
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aviation-related acts without proper FAA authority to do so.
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II. Excessive Fines Issue5
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The Excessive Fines Clause protects individuals against
abusive penalties imposed by the government. See generally
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Austin v. United States, 509 U.S. 602, 606-12 (1993); id. at 627
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(Scalia, J., concurring in part and concurring in the judgment);
Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257,
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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).
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See also Harmelin v. Michigan, 501 U.S. 957, 978 n.9 (1991)
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(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.
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46301(a)(2).6 We are persuaded that this penalty, though
substantial, is constitutionally permissible. Cf. United States
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5 The government contends that Emerson waived this issue by
failing to raise it after the district court imposed a specific
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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
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(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)
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(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
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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
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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
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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,
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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
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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)
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(administrative debarment by FDIC); see also Allen v. Attorney
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General of State of Maine, 80 F.3d 569, 573 (1st Cir. 1996)
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(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
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identified "[t]he pivotal question" to be "whether the sanction,
as applied, exacts rough remedial justice," id. at 576-77
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(footnote omitted).
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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
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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
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6-7; see also, e.g., 49 U.S.C.A. 44701 (previously 49 U.S.C.
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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
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individual arrested for drunk driving, see 80 F.3d at 574, the
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district court noted our holding that the license suspension
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10 This section, inter alia, directs the FAA Administrator
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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
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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.
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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
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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
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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.
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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
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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
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violations by a certificate holder may even demonstrate a lack of
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qualification warranting certificate revocation." (Emphasis
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added.) This is precisely the basis given for revocation of
Emerson's certificate. See supra at 10 ("[T]he Administrator has
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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
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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
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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
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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
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Aeronautics Bd., 311 F.2d 349, 354-55 (1st Cir. 1962), where we
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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.
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Consequently, the district court did not err in refusing to
dismiss the civil action on double jeopardy grounds.
Affirmed.
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