No. 96-1901

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

ALAN D. EMERSON, D/B/A
EMERSON AVIATION, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WALTER DELLINGER
Acting Solicitor General

FRANK W. HUNGER
Assistant Attorney General

JOHN F. DALY
Attorney

Department of Justice
Washington, D.C. 20530-0001
(202)514-2217

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QUESTIONS PRESENTED

    1. Whether a one-year revocation of petitioner's
airman certificate by the Federal Aviation Admini-
stration (FAA) after repeated violations of FAA regu-
lations, followed by imposition of civil penalties based
on the same violations, constituted multiple punish-
ment in violation of the Double Jeopardy Clause of the
Fifth Amendment.
    2. Whether the $185,000 civil penalty imposed by
the district court on petitioner for 37 violations of
FAA regulations violated the Excessive Fines Clause
of the Eighth Amendment.

(1)

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TABLE OF CONTENTS

Page

Opinions below . . . . 1
Jurisdiction . . . . 1
Statement . . . . 2
Argument . . . . 6
Conclusion . . . . 14
Appendix A . . . . 1a
Appendix B . . . . 15a

TABLE OF AUTHORITIES

Cases:

Allen v. Attorney General of  Maine, 80 F.3d 569
(lst Cir. 1996) . . . . 7
Austin v. United States, 509 U.S. 602 (1993) . . . . 11, 12
Bae v. Shalala, 44 F.3d 489 (7th Cir. 1995) . . . . 7
Department of  Revenue  of  Montana v. Kurth
Ranch, 511 U.S. 767 (1994) . . . . 6
DiCola v. FDA, 77 F.3d 504 (D.C. Cir. 1996) . . . . 7
Emory v. Texas State Bd. of Medical Examiners,
748 F.2d 1023 (5th Cir. 1984) . . . . 8
Harmelin v. Michigan, 501 U.S. 957 (1991) . . . . 12
Hawker v. New York, 170 U.S. 189 (1898) . . . . 8
Manocchio v. Kusserow, 961 F.2d 1539 (11th Cir.
1992) . . . . 7
United States v. All Right, Title and Interest in
Real  Property, 77  F.3d 648 (2d Cir.), cert. denied,
117 S. Ct. 67 (1996) . . . . 12
United States v. Bajakajian, cert. granted, No.
96-1487 (May 27, 1997) . . . . 12
United States v. Bizzell, 921 F.2d 263 (l0th Cir.
1990) . . . . 8
United States v. Borjesson, 92 F.3d 954 (9th Cir.),
cert. denied, 117 S. Ct. 622 (1996) . . . . 7

(III)

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IV

Cases-Continued:  

United States v. Certain Real Property Located at
11869 Westshore Drive, 70 F.3d 923 (6th Cir. 1995),
cert. denied, 117 S. Ct. 57 (1996) . . . . 11, 12 
United States  v. 829 Calle  de Madero, 100  F.3d 734
(l0th Cir. 1996) . . . . 11, 12, 13
United States v, Furlett, 974 F.2d 839 (7th Cir.
1992) . . . . 7
United States v. Glymph, 96 F.3d 722 (4th Cir.
1996) . . . . 7
United States v. Granados, 962 F.2d 767 (8th Cir.
1992) . . . . 13
United   States  v. Halper, 490 U.S. 435  (1989) . . . . 6
United States v. Hines, 88 F.3d 661 (8th Cir.
1996) . . . . 11, 13
United States v. Hudson, 14 F.3d 536 (10th Cir.),
on remand on other issues, 879 F. Supp. 1113
(W.D. Okla. 1994), rev'd, 92 F.3d 1026 (10th Cir.
1996), cert. granted, 117 S. Ct. 14.25 (1997) . . . . 7, 10
United States v, Imngren, 98 F.3d 811 (4th Cir.
1996) . . . . 7
United States v. One Parcel Property  Located  at
427  and  429  Hall  Street, 74 F.3d 1165 (llth Cir.
1996) . . . . 12
United States v. Premises Known as RR No. 1, Box
2.24, 14 F.3d 864 (3d Cir. 1994) . . . . 12
United States v. Reed, 937 F.2d 575 (1lth Cir.
1991) . . . . 8
United States v. Stoner, 78 F.3d  710 (lst Cir.),
cert. dismissed, 117 S. Ct. 378 (1996) . . . . 7
United States v. Ursery, 116 S. Ct. 2135 (1996) . . . . 6, 8, 9
United States v. Van Brocklin, 115 F.3d 587 (8th
Cir. 1997) . . . . 13

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V

Constitution, statutes, and regulations:       Page

U.S. Const.:
Art. I, 9, Cl. 3 (Ex Post Facto Clause) . . . . 8
Amend, V (Double Jeopardy Clause) . . . . 3-4, 5, 6, 7, 10
Amend. VIII (Excessive Fines Clause) . . . . 4, 6, 10, 11
Act of July 5, 1994, Pub. L. No. 103-272, 108 Stat.
1094 . . . . 2
  49 U.S.C. App. 1421(a) (1988 & Supp, V 1993) . . . . 2, 9
  49 U.S.C. App. 1421(b) (1988 & Supp. V 1993) . . . . 9
  49 U.S.C. App. 1422 (1988 &  Supp. V 1993) . . . . 2
  49 U.S.C. App, 1429(a) (1988 & Supp. V 1993) . . . . 2, 9
  49 U.S.C. App. 1471 (1988 & Supp. V 1993) . . . . 2
  49 U.S.C. App. 1471(a)(l) . . . . 3, 11
14 C.F.R. (1988):
Section 135.l(a)(3) . . . . 2
Section 135.5 . . . . 2

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

No. 96-1901

ALAN D. EMERSON, D/B/A
EMERSON AVIATION, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION  FOR  A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR  THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

    The opinion of the court of appeals (Pet. App. 1-14)
is reported at 107 F.3d 77.  The opinion of the district
court entering judgment for the government and
setting the amount of the penalty against petitioner
(Pet. App. 15-31) is reported at 927 F. Supp. 23. An
earlier district court opinion rejecting petitioner's
double jeopardy claim (App., infra, la-14a) is un-
reported.  The order of the Federal Aviation Admin-
istration (FAA) revoking petitioner's airman certifi-
cate (App., infra, 15a-23a) is unreported.

JURISDICTION

    The judgment of the court of appeals was entered
on February 26, 1997. The petition for a writ of

(1)

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2

certiorari was  filed on May 27, 1997. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

    1. The Secretary of Transportation is authorized
by Congress to promote the "safety of flight of civil
aircraft in air commerce." 49 U.S.C. App. 1421(a)
(1988 & Supp. V 1993).  Pursuant to that authority,
the Secretary has also been authorized to issue
airman certificates for purposes of air commerce. 49
U.S.C. App. 1422 (1988 & Supp. V 1993).  The Secre-
tary may revoke airman certificates as "safety in air
commerce or air transportation and the public inter-
est require]." 49 U.S.C.  1429(a) (1988. &  Supp. V
1988). Anyone who operates aircraft for the carriage
of persons or property for compensation or hire with-
out an airman certificate is subject to a civil penalty
of up to $10,000 for each violation. 49 U.S.C. 1471
(1988 & Supp. V 1993). In addition, under FAA regula-
tions, no person may operate aircraft exceeding
certain capacity limits for carriage of persons or
property for compensation or hire without an air taxi
operating certificate.  14 C.F.R. 135.l(a)(3), 135.5
(1988).
    2. On May 12, 1992, the FAA issued orders revok-
ing petitioner's airman certificate, and also revoking
the air taxi commercial operations certificate
(ATCO) of Emerson Aviation, petitioner's sole pro-
prietorship. Pet. App. 19. Those actions were based

___________________(footnotes)                           

    1 The provisions of Title 49 relating to aviation have been
completely remodified since the events in this case. See Pub. L.
No. 103-272, 108 stat. 1094, Because the lower courts applied
the earlier version of Title 49, we have cited to that version in
this brief. No substantive change pertinent to this case was
effected by the recodification.

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on several violations of air safety rules, including
operating an aircraft known to be un airworthy. Id.
at 3. Both of the revoked certificates were required
to operate commercial charter flights.  Id. at 2. De-
spite those revocations, petitioner operated numerous
commercial charter flights from June 1992 through
July 1993, carrying passengers on each flight. Id. at
16. Each of those flights was made in violation of 49
U.S.C. App. 1471(a)(l) (1988 & Supp. V 1993).
    On February 16, 1994, upon discovering  the illegal
charter operations being conducted by petitioner, the
FAA issued an emergency order again revoking
petitioner's  airman certificate.  App.,  infra, 15a-23a.
That revocation was based on findings that petitioner
was responsible for operating more than 30 unlawful
flights while he lacked the proper qualifications to do
so and while Emerson Aircraft lacked an ATCO
certificate.  Id. at  16a-17a  see Pet. App. 24. The FAA
also noted that petitioner had been sanctioned on
other occasions for regulatory violations. App., infra,
20a. Petitioner did not contest the 1994 revocation of
his airman certificate.
    3. On March 29, 1995, the United States filed a
complaint against petitioner in district court, seeking
civil penalties for each of the unlawful flights that
had triggered the FAA's revocation of his airman
certificate.  Petitioner moved for dismissal of the
complaint, arguing that the civil penalty proceeding
was an impermissible second punishment for his reg-
ulatory infractions, in violation of the Double

___________________(footnotes)    
                                               
    2 We are informed that, under the terms applicable to the
initial revocation of his airman certificate in 1992, petitioner
was eligible to reapply for an airman certificate after one year,
and that he did so successfully.

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4

Jeopardy Clause of the Fifth Amendment, The dis-
trict court denied the motion, concluding that the
1994 revocation was remedial in nature and did not
constitute punishment for purposes of the Double
Jeopardy Clause. App., infra, 12a-14a.
    The district court subsequently concluded that
petitioner was responsible for 37 separate violations
of FAA regulations.  Pet. App. 15-17. After a bench
trial on the amount of the sanction, the district court
imposed a civil penalty of $5,000 per violation, for a
total of $185,000. Id. at 24.  The court imposed a
penalty less than the $8,500 per violation requested by
the United States because of petitioner's limited
ability to pay. Id. at 28-29.  The court nonetheless
noted that, but for petitioner's financial condition, it
would have been "inclined to award a * * * penalty
at or near the magnitude requested by the govern-
ment given the nature, circumstances, extent, and
gravity of [petitioner's] violations, [his] high level of
culpability, extensive enforcement history, and the
high potential to deter future violations."  Id. at 28.
    4. Petitioner appealed, arguing that the civil
penalty imposed by the district court violated the
Excessive Fines Clause of the Eighth Amendment as
well as the Double Jeopardy Clause. The court of
appeals rejected both contentions. Pet. App. 1-14.
    The court first held that the penalty of $5,000 per
violation, totaling $185,000, was not excessive. The
court noted that the penalty imposed by the district
court was well within the statutory maximum of
$10,000 per violation, that the district court, had
carefully balanced the seriousness of petitioner's
violations against his limited means, and that the
resulting penalty bore a reasonable relationship to
both the violations and the violator. Pet.  App. 7-8.

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5

The court remarked that, although petitioner
"appears at present not to have the resources to pay
the entire penalty, he is employed and, still in his
early 50s, should have long-term future earning
potential,"  Id. at 8.  Should petitioner's future
prospects become "more clearly limited," the court
stated, he could seek "an amelioration from the
district court." Ibid.
    The court of appeals also held that the monetary
penalty was not barred by the Double Jeopardy
Clause. That argument failed, the court explained,
because the 1994 revocation of petitioner's airman
certificate based on the violations that also led to the
monetary penalty was remedial rather than punitive
in nature, and therefore the monetary penalty could
not be considered a second punishment.  Pet. App. 9.
The court stressed that the agency's revocation order
reflected a "focus on considerations of air safety
rather than on punishment," id. at 11, and that "the
emphasis here is not on slapping [petitioner's] wrist
but on preventing him from continuing to present
a safety risk.  He is deprived of  his Airman Certifica-
tion not as punishment for bad conduct, but because
he is `not qualified.'" Id. at 12.
    The court acknowledged that " the loss of [peti-
tioner's] license has had a severe impact on [peti-
tioner] and his aviation business," and that "the
FAA's more serious enforcement measures are de-
signed with deterrence at least partially in mind."
Pet. App. 13-14. Nonetheless, the court concluded,
"the 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,"
and likewise, "deterrence should be an anticipated

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6

byproduct of aggressive safety enforcement." Id. at
14.  The court concluded ultimately that "the evidence
persuades us that the sanction displays colors more
consistent with the remedial end of the spectrum."
Ibid. (citation and internal quotation marks omitted).

ARGUMENT

    The court of appeals correctly ruled that the FAA's
revocation of petitioner's airman certificate did not
constitute punishment for purposes of the Double
Jeopardy Clause, and that the monetary penalty
imposed did not violate the Excessive Fines Clause.
Those holdings do not conflict with any decision of
any other court of appeals or of this Court. Further
review is therefore not warranted.
    1. A trilogy of recent cases of this Court has
addressed whether civil sanctions may constitute
punishment for purposes of the Double Jeopardy
Clause. None of those cases involved an administra-
tive license revocation.  In United States v. Halper,
490 U.S. 435 (1989), this Court stated that, in a "rare
case," where a "fixed-penalty provision subjects a
prolific but small-gauge offender to a sanction over-
whelmingly disproportionate to the damages he has
caused, " id. at 449, the imposition of monetary civil
penalties that "cannot fairly be said solely to serve
a remedial purpose, but rather can only be explained
as also serving either retributive or deterrent pur-
poses," id. at 448, may constitute punishment. In
Department of  Revenue  of  Montana v. Kurth Ranch,
511 U.S. 767, 784 (1994), the Court concluded that a
dangerous-drug tax imposed only on illegal conduct
was "the functional equivalent of a second criminal
prosecution." Finally, in United  States  v. Ursery, 116
S. Ct. 2135, 2142 (19%), the Court held that a civil

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7

forfeiture provision designed by Congress as remedial
did not constitute punishment for double jeopardy
purposes because the statutory scheme was not "so
punitive either in purpose or effect" as to negate
Congress's sex pressed intent.
    Applying the principles of those three precedents to
sanctions such as administrative license revocations
and debarment, the courts of appeals have uniformly
held that such sanctions are not punishment for
purposes of the Double Jeopardy Clause because they
serve the predominantly remedial goal of protecting
the public from harm or protecting the integrity of
a government program from impairment. See United
States  v. Imngren, 98 F.3d  811 (4th Cir. 1996) (sus-
pension of driving privileges); United States v.
Glymph, 96 F.3d 722 (4th Cir. 1996) (debarment from
government contracting); United States v. Borjesson.,
92 F.3d 954 (9th Cir.) (debarment from HUD
programs), cert. denied, 117 S. Ct. 622 (1996); Allen v.
Attorney General of Maine 80 F.3d 569 (lst Cir.
1996) (suspension of driver's license); United States v.
Stoller, 78 F.3d  710 (lst Cir.) (ban from service in any
federally insured bank), cert. dismissed, 117 S. Ct. 378
(1996); DiCola v. FDA, 77  F.3d 504 (D.C. Cir. 1996)
(debarment from providing services to pharmaceutical
companies); Bae v. Shalala, 44 F.3d 489 (7th Cir. 1995)
(debarment from providing services to drug appli-
cants); United States v. Hudson, 14 F.3d 536 (lOth
Cir. 1994) (debarment from affairs of any federally
insured bank), on remand on other issues, 879 F. Supp.
1113 (W.D. Okla. 1994), rev'd, 92 F.3d 1025 (l0th Cir.
1996), cert. granted, 117 S. Ct. 1425 (1997); United
States v. Furlett, 974 F.2d 839 (7th Cir. 1992)
(securities trading ban); Manocchio v. Kusserow, 961
F.2d 1539 (1lth Cir. 1992) (debarment from Medicare

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8

programs); United States v. Reed, 937 F.2d 575 (llth
Cir, 1991) (postal worker's suspension); United States
v. Bizzell, 921 F.2d  263 (l0th Cir. 1990) (debarment
from HUD programs).  Those decisions are con-
sistent with earlier cases that recognized the re-
medial nature of license revocations.  See, e.g.,
Hawker v. New York, 170 U.S. 189, 196 (1898) (law
prohibiting felons from practicing medicine is not
punishment for purposes of  the Ex Post Facto Clause
because the "State is not seeking to further punish a
criminal, but only to protect its citizens"); Emory v.
Texas State Board of Medical Examiners, 748 F.2d
1023, 1026 (5th Cir. 1984) (revocation of medical
license is not punishment because "revocation of
privileges voluntarily granted is `characteristically
free of the punitive criminal element'") (citation
omitted). The court of appeals' conclusion in this
case, that the FAA's revocation of petitioner's airman
certificate was not punishment because it was
intended to promote the remedial goals of aviation
safety, is to the same effect.
    The court of appeals' decision is consistent with the
analysis employed by this Court in Ursery.  Under
Ursery, the first inquiry is whether "Congress
intended" revocation of an airman certificate to
be "criminal or civil." 116.S Ct. at 2147, The FAA
revocation statute unambiguously states that revoca-
tion is appropriate when "safety in air commerce or
air transportation and the public interest require[]"
it, and thus strongly indicates that certificate
revocation serves the civil, remedial aims of insuring

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9

air safety. 49 U.S.C.  App.  1429(a)  (1988  &  Supp. V
1993).3
    Second, petitioner has "failed to establish by the
clearest proof that Congress has provided a sanction
so punitive as to transform what was clearly intended
as a civil remedy into a criminal penalty." Ursery,
116 S. Ct. at 2142 (internal quotation marks omitted).
Even if the revocation of petitioner's airman certi-
ficate might have "certain punitive aspects, [it]
serve[s] [the] important  nonpunitive  goal[]" of insur-
ing air safety. Id. at 2148.  The order revoking
petitioner's certificate confirms its remedial purpose:
the FAA stated that "the Administrator has deter-
mined that you are not qualified to hold an Airman
Certification, in that you lack the required care,
judgment, and responsibility." Pet. App. 11.
    Petitioner suggests that the progressive severity
in the FAA's enforcement options implies that the
most severe level of enforcement must be punitive.
Pet. 25-26. But as the court of appeals recognized,
progressive enforcement severity is equally indica-
tive of remedial goals: as the severity of an airman's
violations increases, so too does the likelihood that
air safety requires that he or she be grounded. Pet.
App. 13. Further, although petitioner suggests that

___________________(footnotes)
                                            
    3 The statute's general powers provision confirms that
regulation of air commerce is fundamentally about assuring
air safety. The Secretary of Transportation is broadly given
the "duty to promote safety of flight of civil aircraft in
air commerce-" 49  U.S.C.  App.  1421(a) (1988 & Supp. V 1993).
Moreover, in issuing airman certificates, the Secretary is
instructed to "give full consideration to the duty resting upon
air carriers to perform their services with the highest possible
degree of safety in the public interest." 49 U.S.C.  App.  1421(b)
(1988 & Supp.. V 1993).

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10

a vendetta against him transformed a remedial
revocation into punishment, Pet. 27, the district court
thoughtfully considered the "strained relationship"
between petitioner and the FAA and found of greater
significance the fact that petitioner chose to violate
FAA regulations rather than to seek alternate relief.
Pet. App. 26-27. Those violations, not personal ani-
mosity, created the threat to air safety that required
revocation of petitioner's airman certificate for the
remedial purpose of maintaining air safety.
    2. There is also no merit to petitioner's contention
that the penalty levied against him violates the
Excessive-Fines Clause of the Eighth Amendment.
See Pet. 10-15.5 As the court of appeals observed, the

___________________(footnotes)

    4 This case need not be held for Hudson v. United States,
cert. granted, 117 S. Ct. 1425 (1997), in which the petitioners
have argued that the imposition for deterrent purposes of a
civil monetary penalty based on banking-law violations, fol-
lowed by a criminal prosecution and punishment based on the
same violations, would result in multiple punishment in vio-
lation of the Double Jeopardy Clause. The central question in
Hudson is whether the initial civil money penalty in that case
constituted "punishment," Monetary penalties are sufficiently
different from license revocations, that the Court's decision
in Hudson is unlikely to affect the outcome of this case.
Indeed, the court of appeals in Hudson concluded that an
administrative sanction barring the defendants in that case
from future participation in bank operations without regula-
tors' approval was remedial and not punishment, even though
it also remanded for a determination whether the civil mone-
ary penalty imposed on the defendants should be considered
 punitive. United States v. Hudson, 14 F.3d 536 (lOth Cir.), on
remand on other issues, 879 F. Supp. 1113 (W.D. Okla. 1994),
rev'd, 92 F.3d 1025 (l0th Cir. 1996), cert. granted, 117 S. Ct.
1425 (1997).
    5 Petitioner also appears to advance the separate argument
that the penalty did not comport with statutory standards.

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11

penalty is well within statutory limits, was imposed
after a careful balancing of the severity of petitioner's
violation and his means, and bears a reasonable re-
lationship to both the violation and the violator. Pet.
App. 8.
    The Excessive Fines Clause is intended to "prevent
the government from abusing its power to punish."
Austin v. United States, 509 US. 602, 607 (1993)
(emphasis omitted). The inquiry under the Excessive
Fines Clause generally involves a determination
whether "the government is exacting too high a
[monetary] penalty in relation to the offense com-
mitted." Id. at 622. Since Austin, the counts of ap-
peals  have  sought to give more particularized  content
to this "factually intensive" inquiry. United States v.
829 Cane de Madero, 100 F.3d 734, 738-739 (lOth
Cir. 1996) (quoting United States v. Certain Real
Property Located at 11869 Westshore Drive, 70 F.3d
923, 930 (6th Cir. 1995), cert. denied, 117 S. Ct. 57
(1996)).  The lower courts have agreed that the
touchstone of an excessive fine is "gross dispropor-
tionality" between the amount of the fine and the
violation.  United States v. Hines, 88 F.3d 661, 664
(8th Cir. 1996); see Austin, 509 U.S. at 627 (Scalia, J.,
concurring) (the "touchstone" of excessive fine
analysis is the "value of the he in relation to the
offense"); 829 Cane de Madero, 100 F.3d at 738

___________________(footnotes)

Pet. 15-21. That claim requires a fact-intensive inquiry into
such matters as the seriousness of the violation and the ability
of the violator to pay, somewhat similar to the inquiry under-
taken by the court of appeals in response to petitioner's
Excessive Fines Clause argument.  See 49 U.S.C. App.
1471(a)(l) (1988 & Supp. V 1993).  Petitioner identifies no legal
issue concerning that fact-bound statutory inquiry that would
warrant this Court's review.

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Certain Real Property, 70 F.3d at 930; United States
v. One Parcel  Property Located  at  427 and  429 Hall
Street, 74 F.3d 1165,1170-1172 (11th Cir. 1996); United
States v. Premises Known  as RR No. 1, Box .224, 14
F.3d 8643 875 (3d Cir. 1994); United States v. All
Right, Title and Interest in Real Property, 77 F.3d
648,658-659 (2d Cir.), cert. denied, 117 S. Ct. 67 (1996)
In addition, analysis of the excessiveness of a fine
must include a substantial degree of deference to
Congress's judgment concerning the seriousness of
the offense. Cf.  Harmelin  v. Michigan,  501 U.S. 957,
998-999-11991) (Kennedy, J., concurring in part and
concurring in the judgment).  Accordingly, courts
conducting a disproportionality analysis have
considered a number of factors, including (1) the
seriousness of the offense, (2) the defendant's
culpability, (3) the maximum sanction authorized by
Congress, (4) the ability of the defendant to pay the
fine, (5) the harshness of the sanction in combination
with other sanctions imposed on the defendant, and (6)

___________________(footnotes)

    6  In cases involving forfeitures, the courts have also con-
sidered the relationship of the forfeited property to the
offense. See 829 Calle de Madero, 100 F.3d at 737 (quoting
Austin, 509 U.S. at 628 (Scalia, J., concurring in part and
concurring in the judgment)).  That factor has no application to
this case. Accordingly, this case need not be held for United
States v. Bajakajian, cert. granted, No. 96-1487 (May 27,
1997), in which the Court will consider whether the forfeiture
of currency that is about to be transported outside the United
States without the report required by statute is an excessive
fine for the violation, the failure to file the report.  Because
Bajakajian turns in large part on factors unique to forfeiture
cases, including the principle that the currency is subject to
forfeiture as the instrumentality of the offense, the Court's
decision in that case is unlikely to have an effect on the
outcome of this case.

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13

any personal benefit reaped by the defendant as a
result of his violation. See United States v. Van
Brocklin, 115 F.3d 587, 601-602 (8th Cir. 1997); 829
Calle de Madero, 100 F.3d at 738 Hines, 88 F.3d at
664; United States v. Granados, 962 F.2d 767, 773-774
(8th Cir. 1992).
    In this case, the district court gave thorough con-
sideration to a variety of factors in imposing the civil
penalties, and the court of appeals carefully analyzed
those factors in concluding that the total amount of
the penalties was not excessive.  The courts below (1)
considered the seriousness of petitioner's repeated
violations of aviation safety regulations, Pet. App. 6,
27; (2) rejected petitioner's claims that he was not
culpable because of a good faith belief that the flights
were lawful, id. at 6, 25-26 (3) explained that the
penalties imposed were one-half the maximum per-
mitted by Congress and less than the amount re-
quested by the government, id. at 5, 7, 17, 28; and (4)
thoroughly considered petitioner's ability to pay the
penalties, both at present and through future earn-
ings, and imposed total penalties substantially less
than those requested by the government "based on
this consideration alone," id. at 28; see id. at 7-8, 22-
23. The court of appeals thereupon correctly
concluded that there was a "careful balance between
[petitioner's] means and the justifiable punishment."
Id. at 8.  Because petitioner has identified no respect
in which the legal standard applied by the courts
below differs in any discernible way from the
standard applied by other lower courts, further re-
view is not warranted,

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14

CONCLUSION

    The petition for a writ of certiorari should be
denied,
Respectfully submitted.

WALTER DELLINGER
Acting  Solicitor General

FRANK W. HUNGER
Assistant Attorney General

JOHN F. DALY
Attorney

JULY 1997

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APPENDIX A

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

No. Civil 94-152-JD

UNITED STATES OF AMERICA

v.

ALAN D. EMERSON, IND. AND
d/b/a EMERSON AVIATION

[Filed: March 29, 1995]

ORDER

DICLERICO, J.

    The plaintiff, the United States of America, has
brought this action against the defendants, Alan
Emerson d/b/a Emerson Aviation ("Emerson Avia-
tion") and Alan Emerson, individually, to recover a
civil penalty of $320,000 for past violations of federal
aviation law and to permanently enjoin future viola-
tions. Before the court is the defendants' motion to
dismiss (document no. 11) for lack of subject matter
jurisdiction. Rule 12(b)(l), Fed. R. Civ. P.

___________________(footnotes) 
   
    1 The court notes that the defendants have previously
filed an answer (document no. 8) and that ordinarily motions
brought pursuant to Rule 12(b), Fed. R. Civ. P. must be filed

(la)

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2a

Background

    On May 12, 1992, the Federal Aviation Administra-
tion ("FAA") issued an emergency order of revocation
revoking the airman certificate of Alan Emerson.  At
all relevant times Emerson did not hold the operating
certificate required for air taxi commercial opera-
tors.  Further, the plaintiff alleges that during the
period from November 11, 1992, through July 28, 1993,
Emerson did not possess the operations specifications
required under federal regulations to engage in the
carriage of persons or property in air commerce for
compensation or hire.  Complaint, 8.
    The plaintiff alleges that on eight separate occa-
sions from November 11, 1992, to June 18, 1993, defen-
dants Alan Emerson, individually, and Alan Emerson
d/b/a Emerson Aviation operated, or caused or author-
ized others to use civil aircraft registration number
N3570M (a Piper PA-34-200T Seneca) or civil aircraft
registration number N30DF (a Piper PA-31) on
round-trip passenger flights for compensation or hire
from Laconia, New Hampshire, to Albany, New York.
Complaint,  10.  The plaintiff further alleges that
on fifteen separate occasions from March 11, 1993, to
July 28, 1993, the defendants operated, or caused or
authorized others to use civil aircraft.. registration
numbers  N3570M or N30DF on round-trip passenger
flights for compensation or hire from Laconia, New
Hampshire, to Islip, New York. Id,  11. According

___________________(footnotes)

"before pleading if a further pleading is permitted." Id. How-
ever, Rule 12(h)(3) provides, "Whenever it appears by
suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the
action." Therefore the defendants Rule 12(b)(l) motion was
timely filed.

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3a

to the plaintiff, when the defendants authorized
others to operate the flights at issue, these individu-
als were not qualified pilots under 14 C.F.R. 
135.293(a)2 and 135.295? Id.,14.  The plaintiff
Title 14 C.F.R.  135.293 provides,

___________________(footnotes)

$135.293 Initial and recurrent pilot testing requirements.

(a) No certificate holder may use a pilot, nor may any per-
son serve as a pilot, unless, since the beginning of the 12th
calendar month before that service, that pilot has passed a
written or oral test, given by the Administrator or an
authorized check pilot, on that pilot's knowledge in the
following areas- (1) The appropriate provisions of parts
61, 91, and 135 of this chapter and the operations specifica-
tions and the manual of the certificate holder

(2) For each type of aircraft to be flown by the pilot, the
aircraft powerplant, major components and systems,
major appliances, performance and operating limitations,
standard and emergency operating procedures, and the
contents of the approved Aircraft Flight Manual or equiva-
lent, as applicable;

(3) For each type of aircraft to be flown by the pilot, the
method of determining compliance with weight and balance
limitations for takeoff, landing and en route operations;

(4) Navigation  and  use  of air navigation aids appropriate to
the operation or pilot authorization, including, when appli-
cable, instrument approach facilities and procedures;

(5) Air traffic control procedures, including IFR proce-
dures when applicable;

(6) Meteorology in general, including the principles of
frontal systems, icing, fog, thunderstorms, and windshear,
and, if appropriate for the operation of the certificate
holder, high altitude weather;

(7) Procedures for

    (i) Recognizing and avoiding severe weather situa-
     tions; (ii) Escaping from severe weather situations, in

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4a

___________________(footnotes)
                               
case  of  inadvertent  encounters, including low-altitude
windshear (except that rotorcraft. pilots are not re-
quired to be tested on escaping from low-altitude
Windshear); and (iii) Operating in or near thunders-
torms (including best penetrating altitudes), turbu-
lent air (including clear air turbulence), icing, hail,
and other potentially hazardous meteorological con-
dition and

(8) New equipment, procedures, or techniques, as
appropriate e.

14 C.F.R.  135.293(a) (1994),

3 Title 14  C.F.R.  135.295 provides,

 135.295 Initial and recurrent flight attendant crew-
member testing requirements.

No certificate holder may use a flight attendant crew-
member, nor may any person serve as a flight attendant
crewmember unless, since the beginning of the 12th calen-
dar month before that service, the certificate holder has
determined by appropriate initial and recurrent testing
that the person is knowledgeable and competent in the fol-
lowing areas as appropriate to assigned duties and
responsibilities 

(a) Authority of the pilot in command;

(b) Passenger handling, including procedures to be follow-
ed in handling deranged persons or other persons whose
conduct might jeopardize safety;

(e) Crewmember assignments, functions, and responsibili-
ties during ditching and evacuation of persons who may
need the assistance of another person to move expeditiously
to an exit in an emergency

(d) Briefing of passengers;

(e) Location and operation of portable fire extinguishers
and other items of emergency equipment;

(f) Proper use of cabin equipment and controls;

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5a
       
further alleges that in connection with the above-
mentioned flights  the defendants  violated 14 C.F.R.
135.314 by advertising  or otherwise offering  to per-
form charter flight operations for which  they  failed to
possess either the proper certification or the re-
quired operations specifications.  Complaint,  15.
    Pursuant to the Federal Aviation Act at 49
U.S.C.A.  1471, the plaintiff contends that each de-
fendant is subject to a civil penalty not to exceed
$10,000 for each of the thirty-two violations alleged in
the complaint, for a total not to exceed $320,000.
Complaint,  16.
    On February 14, 1995, the court issued a prelimi-
nary injunction requiring, inter alia, that each of the
defendants refrain from performing any aviation
related acts unless and until they validly possess the
proper FAA authority to do so.

___________________(footnotes)    
                            
(g) Location  and  operation of  passenger  oxygen  equipment;
(h) Location and operation of all normal and emergency
exits, including evacuation chutes and escape routes; and
(i) Seating of persons who may need assistance of another
person to move rapidly to an exit in an emergency as
prescribed by the certificate holder's operations manual.
 14 C.F.R.  135.295 (1994).
 Title  14  C.F.R. 135.31 provides,
135.31 Advertising.
No certificate holder may advertise or otherwise offer
to perform operations subject to this part that are not
authorized by the certificate holder's operating certifi-
cate and operations specifications.
14 C.F.R.   135.31 (1994).

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6a

Discussion

    The defendants assert, inter alia, that the court
lacks subject matter jurisdiction to adjudicate the
plaintiff's claims because the plaintiff has not ex-
hausted its administrative remedies before the
National Transportation Safety Board ("NTSB"),
that the plaintiff's claims are untimely under the
NTSB's "stale complaint" rule, that the FAA lacks
authority to maintain its claims, and that the exer-
cise of the court's jurisdiction would violate the
double jeopardy clause of the United States Constitu-
tion. See Plaintiff's Motion to Dismiss ("Motion to
Dismiss") at 3-7.  In response, the government
argues that the court's exercise of subject matter
jurisdiction is consistent with the governing statutes
and would not impinge on the defendants' constitu-
tional rights.
    A motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(l),  Fed. R. Civ. P., chal-
lenges the statutory or constitutional power of the
court to adjudicate a particular case. 2A Moore's
Federal Practice  12.07  (2d ed.1994).  In ruling upon
a motion to dismiss for lack of subject matter ju-
risdiction, "the allegations of the complaint should be
construed favorably to the pleader."  Scheuer v.
Rhodes, 416 U.S. 232,236 (1974).

I. Statutory Authority for Federal District Court
   Jurisdiction

    The plaintiff asserts that the court has exclusive
jurisdiction over its action pursuant to the appropri-
ate federal statutes.  Government's Objection to

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7a

Defendants' Motion to Dismiss at 2-6. Under 49
U.S.C.A. 1430,

(a) It shall be unlawful-

       ***

(2) For any person to serve in any capacity as an
airman in connection with any civil aircraft,
aircraft engine, propeller or appliance used or
intended for use in air commerce without an
airman certificate authorizing him to serve in
such capacity, or in violation of any term, condi-
tion, or limitation thereof, or in violation of any
order, rule, or regulation issued under this sub-
chapter.
(4) For any person to operate as an air carrier
without an air carrier operating certificate, or in
violation of  the terms  of  any such  certificate
(5) For any person to operate aircraft in air
commerce in violation of any other rule, regula-
tion, or certificate of the Administrator under this
subchapter.

49 U.S.C.A.  1430(a)(2)(4)(5) (West 1976). Section
1430 is contained in subchapter VI of the Federal
Aviation Act, which addresses the safety regulation
of civil aeronautics. See 49 U.S.C.A.  1421-1432
(subchapter VI). The regulations at issue, 14 C.F.R.
 135.31, 135.293 and 135.295, were promulgated
pursuant to subchapter VI. See Air Taxi Operators
and Commercial Operators Rules, 14 C.F.R. Part 135
at 578 (1994) (indicating that Part 135 was promul-
gated pursuant to 49 U.S.C.  1421-1431, in addition
to 49 U.S.C.  1354(a) (stating certain broad powers

---------------------------------------- Page Break ----------------------------------------                     

8a

and duties of the Administrator),  1355(a) (authoriz-
ing the Administrator to delegate powers and
duties related to the issuance of certificates under
subchapter VI), 1502 (dealing with international
agreements) and 49 U.S.C.   106(g) (revised  Pub.L.
No. 97-449, January 1.2, 1983) (authorizing the FAA
administrator to carry out certain duties of the
Secretary of Transportation).

In pertinent part, 49 App. U.S.C.A. 1471 provides,

(a)(1) Any person who violates  (A) any provision
of subchapter 111, IV, V, VI, VII, or XII of this
chapter or of section 1501 or 1514, or, 1515(e)(2)(B)
of this title or any rule,  regulation, or order issued
thereunder, or under section 1482(i) of this title,
or any term, condition, or limitation of any permit
or certificate issued under subchapter IV of this
chapter, or (B) any rule or regulation issued
by the United States Postal Service under this
chapter, shall be subject to a civil penalty of not to
exceed $1,000 for each such violation, except that
a person who operates aircraft for the carriage
of persons or property for compensation or hire
(other than an airman serving in the capacity of an
airman) shall be subject to a civil penalty of not to
exceed $10,000 for each violation of subchapter III,
VI, or XII of this  chapter, or any rule,  regulation,
or order issued thereunder, occurring after
December 30, 1987.

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9a

(3) Administrative assessment

(A) General authority

Upon written notice and finding of a violation by
the Administrator, the Administrator, or the
delegate of the Administrator, may assess a
civil penalty for a violation of subchapter III, V,
VI, or XII of this chapter or subsections (c) and
(d) of this section, section 1501 or 1515(e)(2)(B)
of the title or any rule, regulation, or order
issued thereunder.
       *** *
(C) Continuing jurisdiction of district courts

Notwithstanding subparagraph (A), the United
States district courts shall have exclusive
jurisdiction of any civil penalty initiated by the
Administrator
(i) which involves an amount in controversy in
excess of $50,000.
        *** *

(iv) in which a suit for injunctive relief based
on the violation giving rise to the civil penalty
has also been brought.

49 App. U.S.C.A.  1471(a)(l), 1471(a)(3)(A), 1471(a)-
(3)(C)(i) and (iv) (West 1994).

The defendants are charged with thirty-two viola-
tions of regulations promulgated under 49 U.S.C.A.
 1430(a)(2), (4) and (5). Pursuant to 49 App. 
1471(a)(l), each of these violations carries a civil

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10a

penalty not to exceed $l0,000 thirty-two violations
carry an aggregate civil penalty not to exceed
$320,000. Because this amount in controversy ex-
ceeds $50,000 the court has exclusive jurisdiction
over the plaintiff's civil penalty claims under
49 App.  1471(a)(3)(C)(i). Further, under 49 App.
 1471(a)(3)(C)(iv), the court has exclusive jurisdic-
tion of the plaintiff's claim for injunctive relief
because this claim is based on the violation giving
rise to the civil penalties at issue.

II. Exhaustion of Administrative Remedies

    Section 1471(a)(l) specifies the circumstances in
which civil penalties must be determined by the
administrative agency:

    The amount of any such civil penalty which
    relates to the transportation of hazardous materi-
    als shall be assessed by the Secretary, or his
    delegate, upon written notice upon a finding of
    violation by the Secretary, after notice and an
    opportunity for a hearing. . . . The amount of
    any such civil penalty for any violation of any
    provision of subchapter IV of this chapter, or any
    rule, regulation, or order issued thereunder, or
    under section 1482(i) of this title, or any term,
    condition, or limitation of any permit or certificate
    issued under subchapter IV of this chapter shall
    be assessed by the Board only after notice and an
    opportunity for a hearing and after written notice
    upon a finding of violation by the Board.

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11a

Section 1471(a)(l) requires an administrative assess-
ment of a civil penalty

    in only three instances: (1) if the penalty `relates
    to the transportation of hazardous materials,' (2) if
    the penalty is imposed for `violation of any
    provision of subchapter IV of this chapter,' which
    relates to the economic regulation of air carriers, 
    or (3) if the penalty issues for violations under 49
    U.S.C.  1482(i), which governs establishment of
    through service and joint fares within the states
    of Alaska and Hawaii and for overseas flights. 49
    U.S.C.  1471(a)(l); see United States v. Kil-
    patrick, 759 F.2d 1250,1252-53 (5th Cir.1985).

United States v. Gaunce, 779 F.2d 1434, 1436 (9th
Cir.1986).

    The defendants argue that the NTSB must impose
a civil penalty before the jurisdiction of the federal
district court can be established under 49 U.S.C. 
1471(a), Defendants' Motion to Dismiss at 1-3.

    Where a civil penalty is sought for alleged viola-
tions of regulations. promulgated under subchapter
VI, no administrative assessment is required by
section 1471(a)(l). Gaunce, 779 F.2d at 1436.

    Because the civil penalties at issue in this case are
sought for alleged violations of regulations promul-
gated under subchapter VI, the court finds that no
administrative assessment of such penalties is re-
quired for the court to exercise jurisdiction pursuant
to 49 App. U.S.C.A.  1471(a)(3)(C)(i) and (iv).

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12a

III. The "Stale Complaint" Rule

    The defendants next assert that the plaintiff's
action is barred by the NTSB's "stale complaint"
rule, set forth at 49 C. F. Ft. 821.33 (1994), because the
complaint was brought more than six months after
the offenses at issue allegedly  occurred.
    The provisions of [49 U.S.C. Part 821] govern all
    air safety proceedings, including  proceedings  in-
    volving  airman medical certification, before a law
    judge on petition for review of the denial of any
    airman certificate or on an appeal from any order
    of the [FAA] Administrator amending, modifying,
    suspending or revoking any certificate. The pro-
    visions of this part also govern all proceedings
    on appeal from an order of the Administrator
    imposing a civil penalty on a flight engineer,
    mechanic, pilot, or repairman, where the under-
    lying violation occurred on or after August 26,
    1992, and all proceedings on appeal to the Board
    from any order or decision of a law judge.

49 C.F.R. 821.2 (1994).

    Section 821.33 is a provision governing administra-
tive air safety proceedings which does not apply to
claims properly brought in a federal district court.
Because the plaintiff's  claims  are properly  before the
court pursuant to 49 App. U.S.C.A. 1471(a)(3)(C)(i)
and (iv), section 821.33 does not apply to the plaintiff's
action.

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13a

IV. Double Jeopardy

    The defendants next assert that "Emerson's rights
to defend properly are before an administrative law
judge until the FAA's complaint has been adjudicated.
To subject him to this Court's jurisdiction now
places him in the unconstitutional position of
`double jeopardy.'" Defendants' Motion to Dismiss, 
7. Further, they contend that "[b]y seeking such a
penalty simultaneously with an order of emergency
revocation the Plaintiff is pursuing an excessive
degree of enforcement amounting to harassment and
intimidation. Id., 3.
    "[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). Under the Double
Jeopardy Clause, "a civil sanction that cannot fairly
be said solely to serve a remedial purpose, but rather
can only be explained as also serving either retri-
butive or deterrent purposes, is punishment." Halper,
490 U.S. at 448. A civil penalty qualifies as punish-
ment in "the rare case" where the penalty is "over-
whelmingly disproportionate" to the damage caused.
Halper, 490  U.S. at 449. "Removal of  persons  whose
participation in [government] programs is detrimen-
tal to public purposes is remedial by definition."
United States v. Bizzell, 921 F.2d 263, 267 (lOth
Cir.1990).
    The FAA revoked the airman certificate of Alan
Emerson for alleged violations of federal regulations
designed to promote air safety. The violation of such

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14a

regulations would obviously be detrimental to public
purposes. Therefore, the court finds that the FAA's
revocation of Emerson's air certificate was remedial
rather than punitive and the Double Jeopardy Clause
is not implicated by the plaintiff federal claims.
Further, and notwithstanding the court's finding as
to the emergency order of revocation, the court finds
that the Double Jeopardy Clause is not implicated in
this case because the civil penalties sought by the
plaintiff are not overwhelmingly disproportionate to
the damage inherent in the alleged conduct of the
defendants.

Conclusion

    For the reasons set forth above, the court finds that
it may properly exercise subject matter jurisdiction
over the plaintiff's action.  The motion to dismiss
(document no. 11) is denied.

SO ORDERED.

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15a

APPENDIX B

Tel:  (617) 238-7045
FAX: (617) 238-7055
93NE050055

February 16, 1994

CERTIFIED MAIL - RETURN RECEIPT REQUESTED,
FEDERAL EXPRESS, AND FIRST CLASS MAIL

Mr. Alan D. Emerson
d/b/a Emerson Aviation
80 Kimball Road
Laconia, NH 03246-9508

EMERGENCY ORDER OF REVOCATION

Take notice that upon consideration of a report of
investigation, it appears that you violated the Federal
Aviation Regulations, hereinafter specified by reason
of the following circumstances:
     1. You are the holder of Airman Certificate
         No. 2130849 with Commercial Pilot privileges.

    2. Also, at all times pertinent herein, you were
        the owner and operator of Emerson Aviation,
        Laconia, New Hampshire.

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16a

    3. On the following dates, without limitation,
    you operated or caused or authorized others to
    use civil aircraft N3570M, a Piper PA-34-200T
    Seneca, owned by another, or N30DF, a Piper
    PA-31, on round-trip passenger carrying flights
    for compensation or hire from Laconia, New
    Hampshire  to  Albany, New York:

                                         Laconia                  Albany                #of
DATE                               DEPARTURE       DEPARTURE    PASSENGERS                                                                     

November 11, 1992          9:00 a.m.               4:30 p.m.            2
December 4,    1992         9:00 am.                5:00 p.m.            3
December 15, 1992          9:00 a.m.               5:00 p.m.            2     
February 18,  1993           9:00 a.m.               5:00 p.m.            3
April 20, 1993                  9:15 a.m.               5:00 p.m.            3
June 16, 1993                   9:00 a.m.               5:00 p.m.            3
June 17, 1993                   9:00 a.m.               5:00 p.m.            4
June 18, 1993                   9:00 a.m.               5:00 p.m.            4

4. Additionally, on the following dates, without limita
tion, you operated or caused or authorized others to
use N3570M or N30DF on round-trip passenger car-
rying flights for. compensation or hire from Laconia,
New Hampshire to Islip, New York.

a. March 11, 1993  i. May 1,1993
b. March 12, 1993  j. May 17, 1993(2 flights)
c. March 25, 1993  k. May 18, 1993
d March 26, 1993  1. May 24, 1993
e. April 14, 1993   m May 25, 1993
f. April 15, 1993    n. July 27, 1993
g. April 28, 1993   o. July 28, 1993
h. April 29, 1993

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17a

    5. Each of  the flights specified  in paragraphs  3 and
4 above were  conducted when you did  not  hold an Air
Taxi Commercial Operator (ATCO) operating certifi-
cate nor appropriate operations specifications.

    6. You operated or caused or authorized others to
operate the flights specified in paragraphs 3 and 4
above when you/they were not qualified to do so under
Part 135.
    7. You served as pilot and used other pilots on the
flights referred to in paragraphs 3 and 4 above when,
since the beginning of the 12th calendar month before
that service, you/they had not:
  
  (a) passed a written or oral test, given by the
  Administrator or an authorized check pilot, on
  your/their knowledge of the areas set forth
  in Section. 135.293(a) of the Federal Aviation
  Regulations;
  (b) passed a competency check, given by the
  Administrator or an authorized check pilot, in
  that type of aircraft to determine your/their
  competence in practical skills and techniques
  in that aircraft; and
  (c) completed the appropriate initial or recur-
  rent training phase of the training program
  appropriate to the type of operation in which
  the  crewmember is to serve.

    8. Additionally, incident to said flights, you adver-
tised or otherwise offered to perform charter flight
operations for which  you did not hold a certificate or
operations specifications.

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18a

    9. Under these circumstances, you failed to com-
ply with the requirements of Part 135 of the Federal
Aviation Regulations while operating numerous Part
135 flights.

    10. Your operation of and your causing or authoriz-
ation of others to use aircraft, in the manner and
under the circumstances described above was
careless and/or reckless so as to endanger the lives
and property of others.

By reason of the foregoing facts and circumstances,
you violated the following Federal Aviation Regula-
tions:

    (a) Section 135.3(a), in that you failed to comply
    with the applicable rules of Part 135 of the
    Federal Aviation Regulations while operating an
    aircraft inside the United States.

    (b) Section 135.5, in that you operated an
    aircraft under Part 135 without a Part 235
    Operation Certificate and appropriate operations
    specifications issued under Part 135 of the
    Federal  Aviation Regulations.
    (c) Section 135.31, in that you advertised or
    otherwise offered to perform operations subject.
    to  Part 135 of the Federal Aviation Regulations
    when not authorized to.
    (d) Section 135.293(a), in that you served as a
     pilot and used pilots under Part 135 in aircraft
    when, since the beginning of the 12th calendar
    month before that service, you and other pilots
    on your behalf had not passed a written or

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19a

oral test, given by the Administrator or an
authorized check pilot.
    (e) Section 135.293(b), in that you served as a
pilot and used pilots under Part 135 in aircraft
when, since the beginning of the 12th calendar
month before that service, you and other pilots
on your behalf had not passed a competency
check given by the Administrator or an author-
ized check pilot in that type of aircraft.
    (f) Section 135.343, in that you served and used
pilots as crewmembers in operations under Part
135  when since the beginning of  the 12th  calen-
dar month before that service you/they had not
completed the appropriate initial or recurrent
training phase of the training program appropri-
ate to the type of operation in which the crew-
member is to serve.
    (g) Section 91.13(a), in that you operated and
caused or authorized others to use aircraft in a
careless and/or reckless manner so as to en-
danger the lives and property of others.
    (h) Section 610(a)(3) of the Federal Aviation Act,
in that you unlawfully employed for service in
connection with any civil aircraft used in air
commerce airmen who do not have airmen
certificates authorizing them to serve in the
capacity for which they are employed.
    (i) Section 610(a)(4), in that you unlawfully op-
erated as an air carrier without an air carrier
operating certificate.

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20a

PRIOR VIOLATIONS/ORDERS

    Furthermore, records of the Federal Aviation
Administration reveal the following:
a. On June 24, 1992,  NTSB ALJ Coffman,  affirmed
the FAA's  Emergency Order of  Revocation, dated
May 12, 1992, revoking your Airman Certificate
No. 2130849  for  violations  of  the Federal Aviation
Regulations. (14 C.F.R. Parts 135.5, 135.293(a)(2)
and 91.13(a)).
b. Also on June 24, 1992, NTSB ALJ Coffman,
affirmed the FAA's Emergency order of Revoca-
tion, dated May 12, 1992, revoking Emerson
Aviation's Air Taxi Certificate No. FTF A023E  for
violations  of  the Federal Aviation Regulations (14.
C.F.R. Parts 135.5 and 135.293(a)(2)).
c. On March 9, 1992, Emerson Aviation's Air Taxi
Certificate No. E15-316, was retroactively sus-
pended for 365 days by an Order of Suspension for
numerous violations of the Federal Aviation Regu-
lations.
d. On August 9, 1991, your CFI Certificate No.
2130849 was revoked for making intentionally false
endorsements in student records. Said revocation
was upheld by  NTSB ALJ Fowler.
e. On November 2, 1990, the FAA issued an Order
of Suspension suspending your Airman Certificate
No. 2130894 for 90 days for entering the Pittsburgh
TCA without having appropriate ATC authoriza-
tion. Said Order was upheld by NTSB ALJ Fowler.

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21a

QUALIFICATIONS

    By reason  of the foregoing facts and circumstances,
the Administrator has determined that you are not
qualified to hold an Airman Certificate, 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 privi-
leges. Furthermore, the Administrator finds that an
emergency exists and safety in air commerce or air
transportation requires the immediate effectiveness
of this Order.

NOW THEREFORE, IT IS ORDERED, pursuant to
the authority vested in the Administrator by Sections
609(a) and 1005(a), of the Federal Aviation Act of 1958,
as amended, that:
    
    (1) Your Airman Certificate No. 2130849, with
all its ratings and privileges be and hereby is
revoked.

    (2) This  Order  is effective immediately.

    (3) You are directed to surrender immediately
your Airman Certificate No. 2130849, will all its
ratings and privileges by mailing it, or delivering
it, to:
   
Assistant Chief Counsel, Room 311
Federal Aviation Administration, ANE-7
12 New England Executive Park
Burlington, MA 01803-5299

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22a

AMY L, CORBETT
Assistant  Chief  Counsel

___________________(footnotes)

JOHN R. DONNELLY
Attorney, ANE-7

APPEAL

    You may appeal this Order by filing an original and
four copies of a Notice of Appeal with the National
Transportation Safety Board, Office of Judges, Room
5531,490 L'Enfant Plaza East, S.W., Washington, DC
20594, telephone (202) 382-0650, FAX (202) 382-0658.
Any Notice of Appeal must be filed within ten (10)
days of the day this Order was served.  You must also
mail a copy of your  Notice of Appeal to this office.  In
view of the fact that the Administrator has deter-
mined that an emergency exists requiring the
immediate effectiveness of the Order, the revocation
of your certificate will remain in effect during the
period of any appeal proceedings before the National
Transportation Safety Board.  You are hereby advised
that if  you appeal, a copy of this Order will be filed
with the National Transportation Safety Board and
will be considered the Administrator's Complaint.  In
any event, you must surrender said certificate im-
mediately as directed in the Order.

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23a

cc: Sandra McDonough, Esquire
     3333 Main Street
     Stratford. CT 06497

    Gretchen Witt, Esquire
    U.S. Attorney's Office
    Chief, Civil Division, Room 312
    55 Pleasant Street
    Concord, New Hampshire 03301

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