
USCA1 Opinion

	




                            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                                         -3-          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.                                          -4-          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.                                          -5-                              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.                                         -6-          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.                                          -7-          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                                         -8-          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                                         -9-                              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.                                           -10-               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).                                              ___                                         -11-          "`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                                         -12-          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                                         -13-          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                                         -14-          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.               _________                                         -15-
