U.S. V. Emerson

• Court: District Court, D. New Hampshire
• Decided: March 29, 1996
• Docket: CV-94-152-JD
• Status: Published

Opinion

U.S. V. Emerson CV-94-152-JD 03/29/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Civil No. 94-152-JD

Alan D. Emerson, et al.

O R D E R

The plaintiff, the United States of America, has brought

this action against the defendants, Alan Emerson d/b/a/ Emerson

Aviation ("Emerson Aviation") and Alan Emerson, individually, to

recover a civil penalty for past violations of federal aviation

law and to permanently enjoin future violations. Before the

court is the defendants' second motion to dismiss (document no.

55) on the ground that the instant civil prosecution violates the

Double Jeopardy Clause of the Fifth Amendment to the United

States Constitution.

Discussion

The court has recited the facts underlying this action in

prior orders, e.g.. United States v. Emerson, No. 94-152-JD, slip

op. (D.N.H. March 29, 1995) (denying first motion to dismiss),

and need not repeat the recitations here. Those facts directly

relevant to the instant motion will be incorporated infra.

The defendants have filed an answer to the government's complaint and, as such, the pleadings have closed within the

meaning of Rule 7 (a). Accordingly, the court will treat the

motion to dismiss as a motion for judgment on the pleadings under

Rule 1 2 (c) .

A motion for judgment on the pleadings will be granted if,

accepting all of the plaintiff's factual averments contained in

the complaint as true, and drawing every reasonable inference

helpful to the plaintiff's cause, "it appears beyond doubt that

the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." Rivera-Gomez v. de Castro,

843 F.2d 631, 635 (1st Cir. 1988); see Republic Steel Corp. v.

Pennsylvania Enq'q Corp., 785 F.2d 174, 182 (7th Cir. 1986)

(standard for evaluating Rule 1 2 (c) motion is essentially the

same as the standard for evaluating motion under Rule 12(b)(6)).

The court's inguiry is a limited one, focusing not on "whether a

plaintiff will ultimately prevail but whether it is entitled to

offer evidence to support the claims." Scheuer v. Rhodes, 416

U.S. 232, 236 (1974) (motion to dismiss under Fed. R. Civ. P.

12 (b) (6)) .

The instant motion reguires the court to revisit the

defendants' double jeopardy argument, initially rejected

approximately one year ago, in light of cases recently decided

by the First and other circuits.

2 The defendants argue that the prior enforcement actions of

the Federal Aviation Administration ("FAA"), which include the

revocation of various certificates, constitute punishment for

double jeopardy purposes and, thus, constitutionally bar the

instant civil prosecution. Defendants' Memorandum in Support of

Second Motion to Dismiss ("Defendants' Memorandum) at 7 (citing

United States v. 9844 South Titan Court, Unit 9, Littleton,

Colorado, 75 F.3d 1470 (10th Cir. 1996); United States v. Perez,

70 F.3d 345 (5th Cir. 1995); United States v. Urserv, 59 F.3d 568

(6th Cir. 1995), cert. granted, 116 S. C t . 762 (1996); United

States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir. 1994)

cert. granted, 116 S. C t . 762 (1996)). The government responds,

inter alia, that the prior FAA actions were remedial rather than

punitive, that the recent decisions cited by the defendants are

factually inapposite, and that the defendants' double jeopardy

argument is foreclosed by the First Circuit's recent decision in

United States v. Stoller, ___ F.3d , 1996 WL 77883 (1st Cir.

Feb. 29, 1996) ) .

"[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 (1989). In recent

3 years federal courts have refined their application of the

clause, in part because of an apparent increase in the number and

variety of cases in which the government has initiated civil

forfeiture actions against criminal defendants. Last month, the

First Circuit surveyed the Supreme Court's double jeopardy

decisions and outlined a case-specific analysis for those double

jeopardy challenges not based on "fines, forfeitures, and other

monetary penalties designed to make the sovereign whole for harm

or loss that is guantifiable in . . . monetary terms." Stoller,

1996 WL 77883 at * 3-8 (citing Department of Revenue v. Kurth

Ranch, 114 S. C t . 1937 (1994); Austin v. United States, 113 S.

Ct. 2801 (1993); Halper, 490 U.S. 435 (1989)). The Stoller

analysis guides the court's consideration of the instant motion

because the FAA's prior enforcement actions did not call for a

monetary penalty.

In Stoller, the First Circuit concluded that an

administrative sanction of debarment imposed by the Federal

Deposit Insurance Corporation ("FDIC") against a former bank

president for insider lending practices did not constitute

"punishment" such as to bar a subseguent federal criminal

prosecution based on the same unlawful conduct. 1996 WL 77883 at

* 13. The court's finding that debarment was a remedial sanction

for double jeopardy purposes followed a totality of the

4 circumstances assessment inspired by Kurth Ranch, 114 S. C t . at

1946-47 .

We conduct our inquiry by considering 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. In the course of this tamisage, we give weight to a variety of factors such as the severity of the civil sanction; its relationship to legitimate, non-punitive aims; the extent to which the legislature acted to deter potential wrongdoers, or conversely, to shield the public; and the nexus (if any) between the civil sanction and the crime that it allegedly punishes.

Id. at * 9 (internal citation omitted).

No one factor, standing alone, controls the court's

determination of whether a sanction is remedial and punitive, id.

at * 9, and the fact that a sanction may also yield punitive

consequences does not necessarily trigger double jeopardy because

"a civil sanction need not be solely remedial to pass

constitutional muster," id. at * 12 (citing United States v.

Hernandez-Fundora, 58 F.3d 802, 806 (2d Cir.), cert. denied, 115

S. C t . 2288 (1995); Bae v. Shalala, 44 F.3d 489, 493 (7th Cir.

1995)). Finally, the First Circuit has ruled that the

characterization of a sanction as remedial is favored where the

government's "authority [to sanction] is not tied to a finding

5 that the targeted individual has committed a crime." Id. at *

9.1

The court finds that the FAA's prior enforcement actions do

not constitute punishment for double jeopardy purposes. First,

the federal aviation laws, including those delegating authority

to the FAA, are principally designed to promote air safety rather

than to criminalize a given type of conduct, e.g., drug use or

money laundering. This legislative intent is readily apparent

from the statutory language, which places heavy emphasis on

(a) Promoting safety. — The Administrator of the [FAA] shall promote safe flight of civil aircraft in air commerce by prescribing [minimum standards for aircraft specifications, maintenance, classifications, etc.].

49 U.S.C.A. § 44701(a) (West Supp. 1995); see § 44702(b) (FAA

shall consider "duty of air carrier to provide service with the

highest degree of safety in the public interest" when issuing

certificates for airmen, air carriers, and airports); § 44703(b)

1The Stoller Court explained that

[j]ust as the presence of an explicit link between a civil penalty and the commission of a crime makes it more likely that the penalty will be deemed punitive for double jeopardy purposes, see Kurth Ranch, 114 S. C t . at 1947, so, too, the fact that a civil penalty can be imposed whether or not the targeted individual has committed a crime makes it more likely that the penalty will be deemed remedial, see, e.g., Thomas v. Commissioner, 62 F.3d 97, 101 (4th Cir. 1995).

Id. at * 9.

6 (airman certificate shall contain terms "necessary to ensure

safety in air commerce"); see also Panqburn v. Civil Aeronautics

Bd., 311 F.2d 349, 355 (1st Cir. 1962) ("One of the dominant

motives of Congress in passing the 1958 [Federal Aviation] Act

was to 'insure the maximum possible safety and efficiency under

proper regulations, impartially enforced.'"). Moreover, Congress

expressly authorized the FAA to amend, modify, suspend, or revoke

any certificate, including those awarded to pilots, such as Alan

Emerson, or carriers, such as Emerson Aviation, if

the Administrator decides after conducting a reinspection, reexamination, or other investigation that safety in air commerce or air transportation and the public interest reguire [such] action.

49 U.S.C.A. § 44709(b); see also Hill v. National Transp. Safety

Bd., 886 F.2d 1275, 1279 (10th Cir. 1989) (noting that FAA's

authority to revoke or modify an aviation certificate "further

contributes to the promotion of air safety") . Thus, the federal

aviation laws, in general, and the laws and regulations governing

pilot and carrier certification and decertification, in

particular, were promulgated to promote the distinctly remedial

goal of reducing the risks associated with air transportation and

commerce.

Second, the FAA's prior enforcement action in this case is

appropriately tailored to the remedial goals of the federal

aviation laws. It is undisputed that the FAA investigated the

7 defendants and, in turn, identified a variety of unsafe practices

that did not conform to applicable law and regulation. The FAA

logically responded to these public safety concerns by limiting

the defendants' flying privileges and, as a result, preventing

the defendants from continuing their pattern of noncompliance.

See Panqburn, 311 F.2d at 355 (upholding administrative

suspension of pilot license. First Circuit noted that "[s]urely

it cannot be gainsaid that the [government's] power to impose a

suspension on an errant pilot in an appropriate case will go far

'to insure the maximum possible safety'"). In addition, the

defendants were not subject to a monetary fine which, in some

instances, would suggest a punitive goal.2

Third, the FAA's authority to revoke the certificates was

not expressly or impliedly tied to a finding that the defendants

had committed a crime. This further supports the government's

position that its prior enforcement activities were principally

designed to remedy a threat to aviation safety and did not

operate as punishment or retribution for the commission of a

crime.

21he court recognizes that the FAA's actions may have carried a punitive sting to the extent the defendants suffered financial loss from the restrictions placed on their flying activities. However, such economic conseguences are secondary to the remedial purpose and design of the sanction and do not transform the sanction into a punishment for double jeopardy purposes. See Stoller, 1996 WL 77883 at * 12. Fourth, the characterization of the FAA's enforcement

activities as remedial harmonizes with last week's decision of

Allen v. Attorney General of Maine, in which the First Circuit

held that the administrative revocation of the driver's license

held by an individual arrested for drunk driving did not

constitutionally bar a subsequent criminal prosecution for the

same conduct. ___ F.3d , No. 95-2057, slip op. at 18 (1st

Cir. March 26, 1996). The court, applying its newly minted

Stoller analysis, found that the license revocation "represents a

reasonable effort to protect the public from motorists who have

demonstrated a dangerous propensity to drink before they drive."

Id. 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." See id.

Fifth, the recent decisions relied upon by the defendants do

not adequately support their contention that the FAA's prior

enforcement activities bar the instant lawsuit. Specifically,

the cited cases address the double jeopardy implications of civil

forfeiture proceedings for money or property under either 18

U.S.C. § 981 or the drug abuse prevention and control act, 21

U.S.C. § 881, where the government also undertakes a criminal prosecution for essentially the same conduct. See, e.g.,

9844 South Titan Court, 75 F.3d at 1474-75 (forfeiture under 21

U.S.C. § 881(a)(6) and (a)(7)); Perez, 70 F.3d at 346 (forfeiture

under 21 U.S.C. § 881(a)(4)); $405,089.23 U.S. Currency, 33 F.3d

at 1214 (forfeiture under 18 U.S.C. § 981(a)(1)(A) and 21 U.S.C.

§ 881(a)(6)). In contrast to these drug cases, the government

never has initiated a forfeiture proceeding against the

defendants and, prior to the filing of the instant civil lawsuit,

the FAA's actions have focused exclusively on the distinctly

remedial goal of maintaining air traffic safety through

compliance with the law.3

31he defendants also contend that jeopardy has attached because the First Circuit's 1962 decision in Panqburn, and the more recent decisions of the Ninth and Tenth Circuits in Go Leasing, Inc. v. National Transportation Safety Bd., 800 F.2d 1514 (9th Cir. 1986), and Hill v. National Transportation Safety B d ., 886 F.2d 1275 (10th Cir. 1989), indicate that the suspension of an aviation certificate may also serve a punitive, disciplinary, or deterrent function. See Defendants' Reply Memorandum at 55 6-9. The argument fails. First, none of these cases addresses the nature of an FAA enforcement sanction in a double jeopardy context. Second, even assuming the aviation laws also authorize punitive sanctions, this alone cannot trigger double jeopardy where the actual sanction at issue in the case at bar is considered remedial under a Stoller analysis. See Allen, No. 95- 2057, slip op. at 10 ("Legislatures routinely combine punitive and remedial measures in a single piece of legislation and that unremarkable fact, without more, tells a court very little about the intrinsic nature of a particular administrative sanction."). Third, as recently as this week the First Circuit has reiterated the view that "[w]hen applying the totality-of-the-circumstances test to a civil sanction, the fact that the sanction may be aimed partially at deterrence is merely one factor to be taken into

10 The court finds that the FAA's prior enforcement actions do

not constitute punishment for double jeopardy purposes given,

inter alia, the legitimate, non-punitive safety aims of the

federal aviation laws, the remedial goals and language of the

specific statutes governing pilot and carrier certification, and

the appropriately tailored and non-monetary nature of the

administrative sanction at issue.

Conclusion

The defendants' second motion to dismiss (document no. 55)

is denied.

This case is scheduled for a bench trial on Monday, April 8,

1996. The court understands from the reprentations of counsel

that the parties have resolved their dispute with respect to all

guestions of liability. Accordingly, the trial will focus

exclusively on the issue of damages.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge March 29, 1996

cc: Patrick M. Walsh, Esguire John P. Railed, Esguire

account in the decisional calculus." Id. at 15.