## SERVED: NOVEMBER 14, 2014 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC**"~** In The Matter Of: DocketNo. FAA-2013-0716 TYLERPENNYWITT ) ) ) ) ) Respondent Case No. 2012S0150128

ORDERDENYING THE RESPONDENT'S MOTION TO DISMISS THE COMPLAINT ON THE GROUND OF DOUBLE JEOPARDY J

.... :-:**~)** t

OnJune 27, 2014, an Order Reserving Motions, Setting Deadlines for Filing Supplemental Materials, and Continuing the Hearing was filed. Among other things, this Order reserved the Respondent's Motion to Dismiss and set an August 22, 2014 deadline for the parties to file supplemental materials. OnAugust 5, 2014, the FAA filed its Supplemental Submission onMotion for Summary Judgment ("FAA Supplement"). OnAugust 25, 2014, Mr. Tyler Pennywitt ("Respondent") filed a Supplemental Submission onMotion for Summary Judgment ("Respondent's Supplement"). On October 14,2014, an Order Denying the Respondent's Motion to Dismiss the Complaint onthe Grounds ofUntimely Filing was filed. I. SYNOPSIS OF THE PARTIES' POSITIONS 

### A. Respondent's Motion to Dismiss The

### prose Respondent's Motionto Dismiss ("Motion") onthe ground ofdouble jeopardy was included as part ofhis May 29, 2014 and August 25, 2014 responsive arguments to the FAA'sMay 5, 2014 Motion for Summary Judgment. In essence, the parties agree that the Respondent has already pled guilty and suffered punishment on one felony count of 18 U.S.C.§ 39A-thenewly enacted federal criminal statute prohibiting laserpointing. As a result, the Respondent argues thatthis subsequent civil regulatory prosecution-forthe "exact same" act of laserpointing which occurred on June 4, 2012-is constitutionally prohibited by the Double Jeopardy clause. (Motion, 4.) The

### prose Respondent objects to being prosecuted and punished twice for the June 4, 2012laserpointing offense. (11/15/13 Ans.; 5/29114 Motion, 1.) In support ofhis Motion, the Respondent highlights multiple facts andrelies upon the U.S. Supreme Court's discussion andholding regarding doublejeopardy in 

### United States v. Halper, 490 U.S. 435 (1989). 

### B. FAA's Response to Motion
Inresponse, the FAA asserts that the Respondent's criminal conviction and sentence does not shield the Respondent from facing civil prosecution for the June 4, 2012laserpointing incident, inpartbecause the FAA's civil regulationrequires different elements ofproofthanthe federal criminal statute. The FAA also argues thatthe Respondent's reliance onthe 

### Halper decision is misplaced, since eight (8) years after

### Halper was decided, the U.S. Supreme Court in 

### Hudson v. UnitedStates, 522 U.S. 93, 99 (1997) overruled 

### Halper and revised its standard of doublejeopardyreview. 

### II. GENERALFACTSUMMARY
The October 14, 2014 Orderprovides a detailed fact summary ofthis case, which is incorporated here byreference. The general fact summary contained inthis Order supplements the October 14, 2014 fact statement. A laser pointer is a device commonly soldto the public at stores such as Radio Shack. (Exh. R-3.) On June 4, 2012, the Respondent, Tyler Pennywitt, was arrested athis home on an allegation ofshining a laser pointer at a Jacksonville, Florida Sheriffs Office helicopter. (Compl. 1; Motion, 1; Exhs C-C and R-1.) Mr. Pennywitt spent the night in a statejail facility, and was thenreleased onhis ownrecognizance. (Exh. R-1; 6/26/14 Tr. at 63-64.) After arresting Mr. Pennywitt, the Jacksonville Sheriffs Office contacted the FAA about the incident (date unspecified), and FAA Inspector Joseph W. Gramzinski began an investigation. (FAA Supp. 1; Motion, 1.) The Jacksonville Sheriffs Office asked Inspector
Page 2 of 18Gramzinski about prosecuting Mr. Pennywitt criminally (date unspecified). Inresponse, Inspector Gramzinski told the Jacksonville Sheriffs Office that federal criminal prosecutions
were not handled by the FAA, butinstead by the U.S. Department ofTransportation's Office of the Inspector General ("OIG"). During Inspector Graminski's investigation, he corresponded with

### Mr. Pennywitt's attorney, Eric Friday. (FAA Supp. 1.) As part ofthis correspondence, onJuly 6, 2012, Mr. Friday sent a letterto Inspector Gramzinski in whichhe provided an explanationfor the June 4, 2012 incident, and enclosed a letter ofapology from Mr. Pennywitt to the helicopter pilot. 

### Mr. Friday asked Inspector Gramzinski for leniency in resolving the matter. (Exh. R-3.) Itis unclear whether FAA Inspector Gra.mZinski or the Jacksonville Sheriffs Office first contacted the OIG about the June 4, 2012 incident or when such contact(s) tookplace. (FAA Supp. 2.) Nevertheless, the OIG was contacted (date unspecified), and OIG Special Agent Glenda White was assignedto the case. (FAA Supp. 2.) Agent White began a federal criminal investigation (date unspecified). On September 11, 2012, OIG Agent White directly contacted

### Mr. Pennywittby telephone and asked to speak with him about the incident. Mr. Pennywitttold Agent White that he was represented by an attorney, and wanted to check withhis attorney first. Later that same day, on September 11,2011,

### Mr. Pennywitt's attorney, 

### Mr. Friday, contacted AgentWhite, and discussed the incident. (Exh. C-K.) Among other things, 

### Mr. Friday told AgentWhite that Mr. Pennywitthadnot violatedthe Florida state criminal statute's "knowledge" provisionregarding laser pointing at aircraft. (Exh. C-K). In response, Agent White told 

### Mr. Friday that she was investigating the June 4, 2012 incident under a federal criminal statute. (/d.) Two days later, on September 13, 2013, Mr. Friday emailed Agent White a courtesy copy ofthe July 6, 2012letter to Inspector Gramzinski, which contained

### Mr. Pennywitt's written apology to thehelicopter pilot, as well as a request for leniency.(Exh. C-L.) Sometime after September 13, 2013 (date unspecified), Inspector Gramzinski provided Agent White with a copy ofthe FAA's investigative evidence aboutthe June 4, 2012laserpointing.

Page 3 of 18Based on Agent White's investigation (otherwise undescribed), the U.S. Attorney's Office subsequently filed federal criminal charges (date unspecified) against Mr. Pennywitt arising from the June 4, 2012 laser pointing act. Thus, on October 4, 2012, approximately three weeks after Mr. Friday's telephone conversation with Agent White, Mr. Pennywitt was charged with violating 18 U.S.C. § 39AAiming a laser pointer at an aircraft. (Motion, 2.) This was a felony crime which carried a maximumpenalty offive (5) years injail, $250,000 in fines, and a three (3) year probation period with various conditions. Five days later, on October 9, 2012, Mr. Pennywitt was arrested again, infront ofhis children, andbooked into a federaljail facility. (Motion, 2; 6/26/14 Tr. at 64-65.) Within 20 hours ofbooking he was released after posting a $10,000 unsecuredbond and agreeing to pretrial release conditions. (Motion, 2; 6/26/14 Tr. at 65.) As a result ofMr. Pennywitt's federal indictment, attorney Mitchell Stone substituted for attorney Eric Friday. OnDecember 11, 2012, approximately seven (7) weeks after Mr. Pennywitt's criminal indictment, the FAA issued a Notice ofProposed Civil Penalty, alleging thatthe Respondent had committed one (1) violation of 14 C.F.R. § 91.11 and proposing a $1,100 civil penalty. (Mot., 2, Ex. R-5.) Approximately three (3) weeks later, onJanuary 3, 2013, the FAA issued an Amended Notice ofProposed Civil Penalty, inwhich it increased its proposed civil penalty from $1,100 to
a total of$11,000. 

### (Id., Ex. R-3.) ThroughoutMr. Pennywitt's criminal prosecution, OIG Agent White remained actively involved. (R Supp

.. 2.) InFebruary 2013, Agent White telephoned Mr. Stevenson, the FAA attorney inthe civil penalty proceeding, and toldhimthat Mr. Pennywitt's attorney, Mr. Stone, hadrequested inthe criminal case thatthe FAA's civil actionbe settled as part ofthe criminal proceeding. (FAA Supp. 3.) Mr. Stevenson advised Agent White that neither the U.S. Attorney's Office northe U.S. District Court had the authority to resolve the FAA's civil penalty proceeding. (FAA Supp. 3.) Shortly thereafter, onApril11, 2013, the FAA issued a Final Notice ofProposed Civil Penalty. Six days later, onApril17, 2013, Mr. Pennywitt pled guilty to one (1) count ofviolating 18 U.S.C. 

### § 39A. That same day, onApril17, 2013, Mr. Stone, Mr. Pennywitt's criminal defense Page 4 of18attorney filed a Request for Hearing inthe FAA's civil penalty proceeding. ("4/17/13 Request"). (Mot. Dismiss 3, Exh. R-9.) Approximately three (3) months later, onAugust 1, 2013, Mr. Pennywittreappeared in the U.S. District Court for felony sentencing. Among other federal sentencing conditions, Mr. Pennywitt was ordered to serve one (1) year ofprobation-during which time he was directed to cooperate inthe collection ofDNA; perform fifty (50) hours ofcommunity service, complete a substance abuse evaluation and any recommended treatment for narcotic, drug, or alcohol addiction; and complete a mental health evaluation. The Respondent was also prohibited from possessing or using firearms, directed to pay a $100.00 Special Assessment, and lost his voting rights. (Motion for SJ, Exh. G; FAA Supp; 6/26/14 Tr. at 50.) One week later, onAugust 8, 2013, the FAA issued its Order Assessing Civil Penalty ("OACP"), inwhich the FAA assessed Mr. Pennywitt with a $11,000 penalty for the June 4, 2012laserpointing incident. Uponreceipt ofthe OACP (date unspecified), Mr. Stone immediately telephoned Mr. Stevenson, the FAA attorney. According to the FAA, Mr. Stone did not mentionthe 4/17/13 Request he had filed. Instead, Mr. Stone "complained" aboutthe OACP, inpart onthe grounds that the U.S. Attorney had misled Mr. Stone and Mr. Pennywitt to believe that the federal criminal conviction would be fully dispositive ofthe entire incident. (FAA Supp. 3.) During this telephone conversation, Mr. Stevensontold Mr. Stone that Mr. Pennywitt's criminal conviction and sentence was not fully dispositive, and that the FAA would not withdraw its OACP. (!d.) OnAugust 14, 2014, six (6) days after the OACP was issued, Mr. Stone filed inthe U.S. District Court criminal case a Motion to Vacate and Set Aside Judgment and Sentence, alleging doublejeopardy. As part ofthis Motion to Vacate, Mr. Stone attached a copy ofthe Respondent's 4/17/13 Request. 1 (FAA Supp., 3.) The U.S. District Court denied the Motion to Vacate on the grounds that the issue was notripe under the federal criminal proceeding, since the criminal proceeding was "the government's first attempt to punish" Mr. Pennywitt. (R. Supp., Exh. R-15, 2.)

1 The issues involving the Respondent's 4/17113 Request for Hearing were separately addressed inthe October 14, 2014 Order Denying the Respondent's Motion to Dismiss the Complaint on the Grounds ofUntimely Filing. Page 5 of18

### III. APPLICABLE LAW A. FAA's Civil Regulation The FAA alleges thatthe Respondent committed one (1) violation of 14 C.F.R. § 91.11. (Compl., 2.) Section 91.11 provides:
No personmay assault, threaten, intimidate, or interfere with a crewmember in the performance ofthe crewmember's duties aboard an aircraftbeing operated. 14 C.F.R. § 91.11. BriefHistory ofF AA's Civil Regulation Section 91.11 was first enacted by Special Regulation onJuly 28, 1961, as part ofthe FAA'sresponse to multiple "hijackings ofair carrier aircraft." 26 Fed. Reg. 7009 (Aug. 4, 1961). Atthe time ofenactment, the FAA's stated goal was to "provide additional controls over the conduct of passengers inorder to avoid a serious threat to the safety offlights and the persons aboard them."

### Id. (emphasis added.). Fifty years later, onJune 1,2011, the FAA issued an interpretation of 14 C.F.R. § 91.11, "advising the public that directing laserbeams towards aircraft operating onthe ground or inthe air so that it interferes with a crewmember inthe performance ofthe crewmember's dutfes is a violation ofsection 91.11." 76 Fed. Reg. 76611 (Dec. 8, 2011) (Interpretation). Thus, the FAA's 2011 interpretationbroadly expanded the scope 14 C.F.R. § 91.11, to include control over the conduct ofindividuals who were not aircraft passengers or aboard the aircraft. Atthe time ofthe FAA's June 1, 2011 interpretation of 14 C.F.R. §91.11, there was no federal criminal statute prohibiting laserpointing at aircraft. 

### B. Federal Criminal Statute OnFebruary 14, 2012-approximatelyeight (8) months after the FAA issued its June 1, 2011 interpretation of 14 C.F.R. § 91.11)-theUnited States Congress enacted 18 U.S.C. 

### § 39A, which criminalizedthe act of"Aiming a laser pointer at an aircraft." Section§ 39Aprovides in part:

Page 6 of 18(a) Offense.-Whoeverknowingly aims the beam ofa laser pointer at an aircraft inthe special aircraftjurisdiction ofthe United States, or atthe flight path ofsuch an aircraft, shall be fined under this title or imprisoned not more than 5 years, or both. 18 U.S.C. 

### § 39A(a) (2012). BriefHistory ofFederal Criminal Statute Ittook Congress seven (7) years to pass legislation criminalizing the act oflaser pointing at aircraft. In2005, the U.S. House ofRepresentatives first identified the need for this criminal provision, after the House Subcommittee on Aviation gathered evidence and tooktestimony from FAA officials, airline pilots, and other aviation experts. H.R. Rep. No. 109-250, at 2-3 (2005). Witnesses testified thatthe laser pointing incidents were a threat to aviation safety. 

### Id. Subsequently, in a Report submitted to the Whole House on October 18, 2005, the Committee on the Judiciary stated in part: Over the past several years, the number ofreports to the Federal Aviation Administration (FAA) detailing the aiming oflasers into airplane cockpits has dramatically increased. Since 1990, there have been over 400 ofthese incidents and more than 100 incidents have beenreported since November 2004. 

## * * *

· FAAresearch has shown that laser illuminations [in airplane cockpits] can temporarily

disorient or disable a pilot during critical stages offlight such as landing ortake-off, and in some cases, may cause permanentphysical injury to the pilot. 

### ld. at 2 (footnote omitted). Despite repeated attempts in 2005, 2006, 2007, 2010, and 2011, members ofCongress
were unable to pass legislation addressing the safety concem.2 However, onFebruary 14, 2012, Congress succeeded inpassing legislationthat made it a crime to knowingly aim the beam ofa laser pointer at an aircraft. FAA Modernization andReformActof 2012, Pub. L. 112-95, 

### § 311 (codified at 18 U.S.C. 

### § 39A (2012)). It should be noted that Congress enacted this federal criminal statute approximately three and a half(3 Yz) months prior to the Respondent's June 4, 2012 arrest.

2 See, e.g., SecuringAircraft CockpitsAgainstLasersAct of2005, H.R. 1400, 109th Cong. § 2 (2005); H.R. 6226, 109th Cong. § 2 (2006); H.R. 1615, 110th Cong. § 2 (2007); H.R. 5810, 111th Cong. § 2 (2010); andH.R. 386, 112th Cong. § 2 (2011). Page 7 of 18

### C. Amendment V ofthe U.S. 

### Constitution Amendment V ofthe United States Constitution provides inpart: "nor shall any person be subject for the same offence to be twice putinjeopardy oflife or limb[.]" This constitutional protection, commonlyreferred to as the Double Jeopardy Clause, is a fundamental protection for the American citizen. Yet, as boththe Respondent and the FAA noted intheir arguments, the application ofthe Double Jeopardy Clause ("Clause") remains difficult, as evidencedbythe U.S. Supreme Court's recent decisions, UnitedStates v. Halper, 490 U.S. 435 (1989), andHudson v. United States, 522 U.S. 93 (1997). This difficulty in the application ofthe Clause was briefly described by Justice Stevens in his concurring opinion in Hudson: [T]he States and the Federal Government have an enormous array ofcivil administrative sanctions at their disposal that are capable ofbeing used to punish persons repeatedly for the same offense, violating the bedrock doublejeopardyprinciple offinality. Hudson, 522 U.S. at 111 (Stevens, J., concurring inthejudgment). 

### IV. OVERVIEW OF THEHALPER 

### AND HUDSON

### DECISIONS As noted earlierherein, the Respondent's Motion relies onthe analysis by the U.S. Supreme Court in UnitedStates v. Halper, 490 U.S. 435 (1989). (Motion, 4-5.)
InHalper, the federal Government charged Ira Halper, the manager ofa medical laboratory service, with 65 criminal counts for allegedly filing false claims for Medicare reimbursement. Mr. Halper was convicted on all65 counts, as well as on 16 counts ofmail fraud. He was sentenced to two (2) years in federal prison, and fined $5,000. Halper, 490 U.S. at 437.
The Governmentthen filed a civil action against Mr. Halper under the False Claims Act. Based on facts established by Mr. Halper's criminal conviction, the U.S. District Court granted summaryjudgmentfor the Government onthe issue of

### Mr. Halper's civil liability. Halper, 490 U.S. at 438. The Government requested a statutorily authorized civil penalty of$130,000, based
onthe penaltyprovisions ofthat Act. The District Court declined to grantthis relief, however, on the grounds that the $130,000 was "more than 220 times greater thanthe Government's measurable loss." 

### ld. at 439. The District Court qualified the $130,000 proposed fine as
Page 8 of 18"punishment" which, inview ofHalper's previous criminal conviction and sentence, was barred by the Double Jeopardy Clause. 

### !d. at 439-40. The District Courtthen entered civiljudgmentin the total amount of$16,000. 

### !d. at 439. Upon the Government's motion for reconsideration, the U.S. District Courtreaffirmed its Double Jeopardy ruling. 3 The Government appealed directly to the U.S. Supreme Court. Inits analysis ofthe case, the U.S. Supreme Court first explainedthe perimeters ofthe Double Jeopardy Clause: [It] protects against three distinct abuses: a second prosecution for the same offense after acquittal; a secondprosecution for the same offense after conviction; and multiple punishments for the same offense. 

### !d. at 440. Next, the Court found that the Halper issue involved the third type ofabuse-whether subjecting Mr. Halper to liability of$130,000 for false claims amounting to $585, constituted a second, ormultiple 'punishment' for the purpose ofdoublejeopardy analysis." 

### !d. at 441.
Inits opinion, the Court noted that civil prosecutions arising from the same conduct could occur-andnot violate the Clause-whenthe proceedings were "remedial" and designed to "protectthe government from financial loss" rather than ''vindicate publicjustice." Halper, at 444 (citing United States ex. rei. Marcus v. Hess, 317 U.S. 537, 548-49 (1956)). The court also acknowledged that remedial sanctions might carry "the sting ofpunishment" and advance "punitive" goals, but noted that this did not mean the sanctions violated the Clause. 

### !d. at 447. Thus, to determine whether the Clause had been violated, the Halper Court focused on a "particularized assessment ofthe penalty imposed and the purposes that the penalty may fairly be said to serve." 

### !d. at 448. In a unanimous opinion, the Supreme Court agreed with the U.S. District Court, found that Double Jeopardy applied in 

### Mr. Halper's case, and held that: [U]nderthe Double Jeopardy Clause a defendant who already has beenpunished in a criminal prosecutionmay not be subjected to an additional civil sanctionto the extentthat the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution." 

### !d. at 448-49.

3 Uponreconsideration, the U.S. District Court also admitted to some error in its calculation ofthe $16,000 civil penalty, butruledthatthe $130,000 penalty still couldnot be imposed. Halper at 439. Page 9 of18Inthe Motion inthis case, Mr. Pennywitt asserts that the Halper discussion and analysis is directly on point, and should be applied: The civil penalty is based on the exact same conduct as the criminal case and the civil penalty bears no rational relation to any governmental loss. Therefore a motion to dismiss based on doublejeopardy would be well taken

.. .in favor ofthe Respondent. (Motion, 5.)
Inresponse, the FAA argues that the U.S. Supreme Court revisited the Halper case in 1997 (i.e., eight years later), and overruled its Halper analysis in the case ofHudson v. United States, 522 U.S. 93, 99 (1997). The FAA is correct, although the Hudson case did not necessarily provide better or clearer guidance onthe issue ofdoublejeopardy.
In Hudson, the Government, through the Office ofComptroller ofCurrency ("OCC"),

. administratively imposed monetary penalties and occupational debarment onthree bank officers for violating federal banking statutes. Although the alleged bank losses were "almost $900,000", the Government entered into Consent Orders with the banking officers, which limited each ofthe bank officer's individual civil liability to $16,500 or less. !d. at 97. Shortly thereafter, the Government filed a 22 countfederal criminal indictment against the bank officers "for essentially the same conduct." !d. at 95 and 97. The bank officers moved to dismiss the criminal indictment on doublejeopardy grounds. On appeal, the U.S. Court ofAppeals held, following the Halper analysis, that the OCC's civil sanctions against the bank officers entered into by Consent Orders, were "not so grossly disproportional to the proved [Government] damages" that the criminal case was barredby the Double Jeopardy Clause. Id. at 98. The U.S. Supreme Court granted certiorari, because of"concems" about "novel" doublejeopardy claims "spawned inthe wake ofHalper." !d. In a 5-4 decision (unanimous inthejudgment), the Hudson Court agreed withthe Court ofAppeals that Double Jeopardy did not apply, but for different reasons. The Hudson Court disavowed the doublejeopardy analysis ithad used inHalper, and reaffirmed its previously established doublejeopardy analysis exemplified in the case of UnitedStates v. Ward, 448 U.S. 242, 248-249 (1980). Hudson, 522 U.S., at 95. The Hudson court also renewed its reliance on the "guidepost" analysis inKennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963), in
Page 10of 18determining whether a civil statutory scheme was "so punitive" that ittransformed a civil remedy "into a criminal penalty." 

### Hudson, 522 U.S. at 99. The 

### Hudson Court majority opinion found that in

### Halper, the Court had deviated from traditional doublejeopardy doctrine intwo respects. First, the 

### Halper Courthadbypassedthe threshold question ofwhether the second, civil punishment sought against 

### Mr. Halperhadbeen a criminal punishment, and instead focused on whether the second sanction was "so overwhelmingly disproportionate" to the harm caused as to constitute punishment, regardless of whether that punishment was characterized as civil or criminal. 

### !d. at 101 (internal quotation omitted). Second, the 

### Halper Court assessed the "'character ofthe actual sanctions imposed

... rather than evaluating the [penalizing] statute onits face to determine whether itprovided for a criminal penalty. 

### !d. (quoting 

### Halper, 490 U.S., at 447).
Inthe 

### Hudson Court's analysis ofthe banking officers' case, it applied thetwo-part test. exemplified in 

### Wardto evaluate the doublejeopardy claim: 1) "whetherthe legislature, 'in establishing the penalizing mechanism, indicated either expressly orimpliedly a preference for
one label orthe other [i.e., criminal or civil label],"'

### Id. (quoting 

### UnitedStates v. Ward, 448 U.S. 242, 248 (1980)); and 2) inthose cases where the legislature "has indicated an intentionto establish a civil penalty," 

### id., '"whetherthe statutory scheme [is] so punitive either inpurpose or effect,"' 

### id. (quoting 

### Ward, 448 U.S., at 248-49), "as to 'transfor[m] whatwas clearly intended
as a civil remedy into a criminal penalty,"' 

### id. (alteration in original) (quoting

### Rex Trailer Co. v. United States, 350 U.S. 148, 154 (1956)). The 

### Hudson Court addressed this second question-whetherthe civil remedy inthe banking officers' case had been so punitive as to transform it into a criminal penalty-by applying the following "useful guidepost" factors (not exclusive) listed in

### Kennedy v. MendozaMartinez, 372 U.S. 144, 168-169 (1963): (1) "[w]hether the sanction involves an affirmative disability orrestraint"; (2) "whether ithas historically beenregarded as a punishment"; (3) "whetherit comes into play only on a finding ofscienter"; (4) "whether its operation will promote the traditional aims ofpunishment-retribution and deterrence"; (5) whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which itmay rationally be connected is assignable for it"; and (7) "whether it appears excessive inrelation to the alternative purpose assigned." Page 11 of18

### Hudson, 522 U.S. at 99-100. The 

### Hudson Court emphasized that "'[t]hese factors must be considered inrelation to the statute onits face," 

### id. at 100 (quoting 

### Kennedy, 372 U.S. at 169), "and 'onlythe clearest proof' will suffice to override legislative intent and transfor.m what has been denominated a civil remedy into a criminal penalty," 

### id. (quoting 

### Ward, 448 U.S. at 249). The 

### Hudson Court concluded that Congress intended the OCC money penalties and debarment sanctions to be civil in nature, based onthe express provision inthe statute that such penalties are "civil." 

### !d. at 103. The Courtthen applied the seven "guidepost" factors listed in 

### Kennedy and found that there was "simply very little showing, to say nothing ofthe 'clearest proof' required by 

### Ward, that the OCC civil money penalties and debarment sanctions are 'criminal."' 

### !d. at 105. Thus, the Double Jeopardy Clause was "no obstacle to [the bank officers] trial onthe pending indictments[.]" 

### !d. Although ChiefJustice Rehnquist wrote the majority opinion inthe 

### Hudsoncase, it was not shared by all the members ofthe Court. Instead, Justices Stevens, Souter, Breyer, and Ginsburgjoinedinthe majorityjudgment, butthey filed separate opinions inwhichthey discussed certain disagreements.
For example, Justice Stevens opined that rather than reexamining and overturning the central holding of

### Halper, the 

### Hudson Court should have applied the "same-elements" test established in

### Blockberger v. UnitedStates, 284 U.S., 299 (1932). 

### Hudson, 522 U.S., at 107 (Stevens, J. concurring inthejudgment). Under the "same-elements"test, "two provisions are not the 'same offense' ifeach contains an element not included inthe other." 

### !d. (quoting 

### United States v. Dixon, 509 U.S. 688, 696 (1993). Nevertheless, Justice Stevens emphasizedthat "the Government cannotuse the "civil" label to escape entirely the Double Jeopardy Clause's command, as we have recognized for at least six decades." 

### !d. at 110. (citations omitted). Additionally, both Justice Stevens and Justice Breyer cautioned against "evaluating a statute only onits face, rather than assessing the character ofthe actual sanctions imposed." 

### Hudson, 522 U.S., at 116 (Breyer, J. concurring inthejudgment) (internal quotations and citations omitted). Justice Breyer also agreed that "it seems quite possible

... that a statute that

Page 12 of 18provides for a punishment that normally is civil in nature could nonetheless amount to a criminal punishment as applied in special circumstances." 

### !d. at 116-17. 

### V. DISCUSSION AND ANALYSIS As noted earlierherein, the Respondent, Mr. Pennywitt, was first indicted on federal criminal charges, and thenthe FAA filed civil charges against him. Mr. Pennywittpled guilty in 2013 to one violation of 18 U.S.C. § 39A, the newly enacted federal criminal statute. Mr. Pennywitt still faces the FAA's continued prosecution ofthe civil charges, and is challenging the constitutionality ofsuch government action.
Mr. Pennywitt is one ofthe first individuals to be charged, both withthe newly enacted 2012 federal criminal statute, and with the FAA's civil regulation, for the act oflaser pointing at
an aircraft. Nevertheless, the question ofwhether the Double Jeopardy Clause prohibits the prosecution ofa violation of 18 U.S.C. § 39A and a civil prosecution for a violation of 14 C.P.R. § 91.11 was recently addressed in UnitedStates v. Smith, No. 8:12- CR- 252, 2013 WL 1386638 (D. Neb. Apr. 4, 2013) (Mem. and Order), aff'don other grounds, 765 F.3d 1070 (8th Cir. 2014), pet. for cert. filed, No. 14-6462 (Sept. 24, 2014). OnAugust 22, 2012, a federal grandjury indicted Michael Smith for one violation of 18 U.S.C. § 39A, inwhich Mr. Smith was alleged to have aimed a laserbeam at an OmahaPolice helicopter on or about July 11, 2012. 

### !d. at *1. Approximately two (2) months later, on October 16, 2012, the FAA served Mr. Smithwith aNotice ofProposed Civil Penalty, alleging thathe had also violated 14 C.P.R.§ 91.11 during the July 11, 2012laserbeamincident. 

### !d. Three months later, in January 2013, "the FAA notified Smithby letter" that 

### itwas seeking "a $9,000 civil penalty" for the July 11, 2012 incident, onthe basis that it was 'warranted and appropriate."' 

### !d. The FAA also notified Mr. Smiththat it intended to issue a Final Notice of Proposed Civil Penalty, which would cause Mr. Smith to suffer "indebtedness" for the proposed $9,000 amount, ''to the United States." 

### !d. Uponreceipt ofthe FAA's January 2013 "letter", Mr. Smith immediately moved inthe U.S. District Courtto dismiss the pending federal criminal charges withprejudice, onthe ground ofdoublejeopardy. The assigned U.S. Magistrate recommended that the motionbe denied. Mr. Smith objected, and asked for review by the U.S. District Court Judge. 

### !d. at 1. Page 13 of18Duringjudicial review, Mr. Smith argued that the U.S. Attorney's criminal prosecution against him violatedthe Double Jeopardy Clause because "the FAA ha[d] already imposed what amounted to a criminal penalty for the same conduct alleged in the pending indictment." Jd

### at I. Mr. Smith cited to the Hudson case, and claimed that the nature ofthe FAA'sproceedings, and the amount ofthe civil fine, made "the purportedly civil proceedings punitive innature for purposes ofthe Double Jeopardy Clause." 

### !d.
In its decision, the District Court first noted that the FAAhad stayed issuance ofthe Final Notice ofProposed Civil Penalty to "avoid 'impeding"' the criminal prosecution. 

### !d. As a result,
no civil penalty hadbeen imposed against Mr. Smith, and the criminal action remained the first proceeding Mr. Smithfaced. Thus, the U.S. District Court Judge specifically did not address the question as to whetherthe FAA'sproposed civil penalty was so punitive inpurpose or effect as to transform it into a criminal penalty, or, assuming it was a criminal penalty, whetherjeopardy had attached to the FAA proceeding. 

### !d. at 2. Then, instead ofdiscussing and applying the Hudson analysis, the District Court Judge looked to see ifthe FAA's civil regulatory elements were identical to the federal criminal statute, utilizing the "same elements" test identified inBlockburger and discussed by Justice Stevens in his concurring opinion inHudson. As a result, the District Court found that "prosecutionunder bothprovisions was notbarred bythe Double Jeopardy Clause." 

### !d. The Court reasoned as follows: To show a violation of§ 39A, the government must prove Smithknowingly aimedthe beam ofa laser pointer at an aircraft, but need not show that this actually interfered withthe performance ofa crewmember's duties. To have violated§ 91.11, onthe otherhand, Smithmusthave actually interfered withthe performance ofan aircraft crewmember's duties, butneed not have used a laser pointer to do so. UnderBlockburger, these do not constitute the same offense. 

### !d. at2. In essence, the District Court in Smith avoided the Hudson analysis, which looked at multiple factors inreviewing a claim ofdoublejeopardy. As noted earlier herein, the Hudson Court applied a two-part test analysis to evaluate the banking officers' doublejeopardy claim. The first part ofthetest was to determine "whetherthe

Page 14of 18legislature, 'in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label orthe other"' [i.e., criminal or civil label]. Hudson, at 101.
Inthe instant case, the FAA's authority to pursue civil penalties is found in 49 U.S.C. § 46301, titled "Civil Penalties." Section 46301(d)(2) provides inpartthat the FAA Administrator "may impose a civilpenalty for a violation of

... Chapter 447 (except sections 44717 and 44719-44723)." (emphasis added). The statute's provision ofauthority onthe FAA Administratorto assess the penalty is, in itself, "primafacie evidence that Congress intendedto provide for a civil sanction." Hudson, 522 U.S. at 103. The Respondent inthis case is charged withviolating 14 C.F.R § 91.11, which is a regulation prescribed under Chapter 447.4 Therefore, Congress has expressly indicated a preference thatthe civil label (i.e., not a criminal label) attach to any penalty assessed for a violation of 14 C.F.R. § 91.11. The second part ofthe Hudsontest is to evaluate those cases where the legislature "has indicated an intentionto establish a civil penalty" and'determine whether the statutory scheme is
so punitive either inpurpose or effect "as to 'transfor[m] what was clearly intended as a civil remedy into a criminal penalty."'

### !d. at 101. As discussed earlier herein, as part ofthis second test analysis, the Hudson Courtutilizedthe following seven (7) "guidepost" factors (not exclusive) listed inKennedy. These factors are addressed in this case below. (1) Whether the civil sanction involves an affirmative disability or restraint. Imposing a money penalty onthe Mr. Pennywitt does not involve an affirmative restraint. There is no incarceration, probation, or any other restriction onMr. Pennywitt's movements. While Mr. Pennywitthas argued thathis work and professional career has beenpermanently damagedbyhis felony conviction, this damage,has not been imposed by any civil sanction. Ithas been a consequence ofthe criminal conviction. As a result, it cannot be used in evaluating the purpose and effect ofthe civil statutory scheme. Nevertheless, the potential damage to 

### Mr. Pennywitt's career and earning capacity may certainly be addressed during the consideration of what civil penalty should be imposed, under a "totality ofcircumstances" review.

4 The original authority for the promulgation of 14 C.F.R. § 91.11 was 49 U.S.C. § 1421. 26 Fed. Reg. 7009 (Aug. 4, 1961) Followingthe recodification andreorganization ofTitle 49, section 1421 currently appears at 49 U.S.C. § 44701. Page 15 of 18(2) Whether a monetary fine has historically beenregarded as a "punishment." Civilly imposed money penalties have not historically been viewed as "punishment." Hudson at 104. In discussing this factor, the Hudson Court noted that ''the payment offixed or variable sums ofmoney" in a civil sanction "has beenrecognized as enforceable by civil proceedings since the original revenue law of 1789." 

### !d. at 104 (quoting Helvering v. Mitchell, 303 U.S. 391,400 (1938)). Inthis case, the FAA seeks to impose a variable monetary sanction against Mr. Pennywitt, whichhistorically has notbeen regarded as a "punishment." (3) Whetherthe civil sanctioncomes into play only on a finding ofscienter. "Scienter" refers to an individual's state ofmind, orknowledge. Section46301(d)(2), 49 U.S.C., allows imposition ofa civil penalty "for a violation of' 14 C.F.R. 

### § 91.11 withoutregard to the Respondent's state ofmind. Obviously the FAA must prove the laser pointing incident served to "assault, threaten, intimidate, or interfere with a crewmember" butthese elements might be proven without any malicious or specific intent. Thus, the Respondent's scienter does not control whether a civil violation ofSection 91.11 is found, or whether a civil penalty should be assessed. Underthe Hudson analysis, this lack ofscienter lends weight to finding thatthe civil sanctionis notcriminal innature. Hudson, at 104. Nevertheless, Mr. Pennywitt's knowledge or intent inthe laser pointing incident in this case may certainly be considered when determining the amount ofthe civil penalty. (4) Whetherthe operation ofthe civil regulation will promote the traditional aims ofpunishment-retribution and deterrence. The presence ofa deterrent purpose or effect in a civil regulation and monetary fine is not dispositive. A civil penalty may serve as deterrence, without converting such penalty into the functional equivalent ofa second criminal prosecution. Hudson, at 102. The FAAhas been given the authority to assess civil penalties to help to deter future violations ofits regulations. This may very well feel like a "punishment" to the Respondent, but such perception does not automatically convert the FAA's exercise ofits regulatory sanction authority into a criminalpunishment, in violation ofthe doublejeopardy clause. Id at 105.

Page 16 of18(5) Whetherthe behavior to whichthe regulation applies is already a crime. Clearly the laserpointing behavior identified in 14 C.F.R. § 91.11 is also a federal crime. Mr. Pennywitthas already pled guiltyto the criminal violation of 18 U.S.

### C.§ 39A for the June 4, 2012 incident. However, this factor alone is not determinative in a doublejeopardy evaluation, because it is "well settledthat Congress may impose both a criminal and a civil sanction in respect to the same act or omission." UnitedStates v. Ursery, 518 U.S. 267, 292 (1996) (quoting Helvering, 303 U.S. 391 at 399). (6) Whether an alternative purpose to whichthe civil remedy mayrationally be connected is assignable for it. According to the FAA's civil penalty sanction guidance, a civil penalty assessment should deter both future violations by the party against whom it is assessed, and also help deter future violations by others. Ideally, these goals educate boththe individual and the public, and help improve the overall safety ofthe aviation industry. Civil penalty actions help the FAA fulfill its missionto further the public interestby "assigning, maintaining, and enhancing safety and· security as the highestpriorities in air commerce." 49 U.S.C. 

### § 40101(d). These are rational goals, directly related to the FAA's congressionally mandated mission. (7) Whetherthe civil sanction appears excessive inrelationto the alternative purpose assigned The FAA is asserting that Mr. Pennywitt shouldbe assessed the maximum amount of $11,000 incivil sanctionfor the June 4, 2012laser pointing incident. Inresponse, 

### Mr. Pennywitt asserts that such sanctionis unreasonable on its face, particularly givenhis criminal conviction and punishment. Even ifit is assumed, hypothetically, that the proposed $11,000 civil sanction in this case mightbe excessive, that does not trigger the Double Jeopardy Clause protection for the civil regulation as a whole. Congress has established, in49 U.S.C. § 46301(a)(5)(A), the civil penalty range of$0.00 to $11,000 for violations ofSection 91.11 by an individual. This is a variable amount, subjectto administrative review. Inthis case, 

### Mr. Pennywitt still has the opportunity to present evidence and ask for consideration ofthe "totality ofthe circumstances" in challenging the FAA's proposed fine of$11,000. Factors considered in addressing the "totality ofthe circumstances" for determining an appropriate civil penalty, include (not exclusive): (1) the nature and Page 17 of 18circumstances ofthe violation; (2) the extent and gravity ofthe violation; (3) the person's degree ofculpability; (4) the person's history ofprior violations, ifany; (5) the person's ability to paythe civil penalty; (6) the effect on the person's ability to stay inbusiness; and (7) other matters as justice may require." In re Folsom'sAirService, Inc., FAA OrderNo. 2008-11 at 11 (Nov. 6, 2008). Such a statutory scheme, which allows for a respondent to challenge and provide evidence inopposition to the FAA's proposed civil penalty in any individual case, is not excessive in relation to its purpose. 

### VI. CONCLUSION Based onthe language of49 U.S.C. § 46301, the money penalties provided for in49 U.S.C. 

### § 46301 were clearly intendedto be civil penalties. After analysis ofthe statutory penalty scheme under the factors enumerated inHudson, the statutory scheme is not so punitive in purpose or effect to override that intent and transform the FAA's civil penalty enforcemel).t actions to "multiple criminal punishments for the same offense." Therefore, the Double Jeopardy Clause does notpreventthe FAA's civil penalty case charging the Respondent with a violation ofSection 91.11 from proceeding. Based onthe foregoing and pursuant to 14 C.F.R. §§ 13.205(a)(8) and 13.218(t)(2), and after reviewing all relevant caselaw, regulations, statutory authority, and being fully advised; 

### IT IS HEREBY ORDERED: 1. The Respondent's Motionto Dismiss onthe Ground ofDouble Jeopardy is denied. 2. A separate order shall issue on or before November 21, 2014 onthe FAA's Motionfor Summary Judgment.

Attachment: Service List

Page 18 of18SERVICE LIST ORIGINAL & ONE COPY 

### Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W10005



### Mr. 

### Christopher R. 

### Stevenson Complainant's Counsel 

### Office ofthe Regional Counsel, AS0-7 Southern Region Federal Aviation Administration P.O. Box 20636 Atlanta, GA 30320 TEL: 404-305-5200 FAX: 404-305-5223 Mr. 

### Tyler Pennywitt Respondent 

### 4483 Hanover ParkDrive Jacksonville, FL 32224 TEL: 904-252-1356 FAX: 904-928-0909

Judge J.E. Sullivan US. Administrative LawJudge 

### Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 ONE COPY 

### FDMS No. FAA-2013-0716 (Civil Penalty Action)

5 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, DC 20591, Attention: Hearing Docket Clerk, AGC-430.