*This order and judgment is not binding precedent, except

under the doctrines of law of the case, res judicata, and

collateral estoppel. The court generally disfavors the citation

of orders and judgments; nevertheless, an order and judgment may

be cited under the terms and conditions of Tenth Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 7/10/96

FOR THE TENTH CIRCUIT

______

MICHAEL A. BEAUCHEMIN, )

)

Petitioner, )

)

v. ) No.95-9534

) FAA No. SE-13814

NATIONAL TRANSPORTATION SAFETY ) 

BOARD, FEDERAL AVIATION ) 

ADMINISTRATION, )

)

Respondents. )

______

ORDER AND JUDGMENT*

______

Before SEYMOUR, BARRETT, and LIVELY*, Circuit Judges.

______

BARRETT, Senior Circuit Judge.

______

*The Honorable Pierce Lively, Senior Judge, United States Circuit

Court of Appeals for the Sixth Circuit, sitting by designation.

______

Michael A. Beauchemin (Beauchemin) appeals from an order of

the National Transportation Safety Board (NTSB) affirming an order

of the Federal Aviation Administration (FAA) revoking his private

pilot certificate.

Facts

On April 12, 1991, Beauchemin was convicted upon his plea of
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guilty of engaging in a continuing criminal enterprise, in

violation of 21 U.S.C. § 848. In his plea, Beauchemin admitted

that between 1983 and 1988 he served as an organizer, supervisor,

or manager of at least five other people involved in the

importation, possession with intent to distribute, and distribution

of 24,000 pounds of marijuana. Based on his conduct, he was

sentenced to imprisonment for seven years followed by five years of

supervised release.

On September 23, 1994, the FAA issued an order revoking

Beauchemin’s private pilot certificate, No. 2392742, pursuant to 49

U.S.C. § 44709(b), based on Beauchemin’s conviction. The FAA

concluded that Beauchemin’s conviction demonstrated that he lacked

the degree of care, judgment, and responsibility required of a

certificate holder under 14 C.F.R. § 61.15(a)(2); therefore, he

lacked the qualifications to hold a pilot certificate.

Beauchemin appealed the FAA’s revocation order to the NTSB.

In his answer, Beauchemin admitted the factual allegations in the

FAA’s complaint, including that he was convicted of engaging in a

continuing criminal enterprise.

On January 13, 1995, the Administrative Law Judge (ALJ)

granted the FAA’s November 22, 1995, motion for summary judgment

and affirmed the FAA’s revocation of Beauchemin’s pilot

certificate. On January 19, 1995, the NTSB denied Beauchemin’s

appeal and affirmed the ALJ’s initial decision affirming the FAA’s
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revocation order. Administrator v. Beauchemin, N.T.S.B. Order No.

EA-4371 (1995).

Discussion

On appeal, Beauchemin contends that revocation of his pilot

certificate based on his prior conviction is punitive and, thus,

constitutes multiple punishments for the same crime in violation of

the Double Jeopardy Clause of the Fifth Amendment. We derive our

authority to consider Beauchemin’s constitutional arguments from 5

U.S.C. § 706(2)(B), and we review the NTSB’s interpretation of

constitutional or statutory provisions de novo. Bennett v.

N.T.S.B., 66 F.3d 1130, 1136 (10th Cir. 1995).

“[T]he Double Jeopardy Clause protects against three distinct

abuses: a second prosecution for the same offense after acquittal;

a second prosecution for the same offense after conviction; and

multiple punishments for the same offense.” United States v.

Halper, 490 U.S. 435, 440 (1989). In Halper, the Court noted that

in making a double jeopardy assessment, “the labels ‘criminal’ and

‘civil’ are not of paramount importance.” Id. at 447. The test of

“whether a civil sanction constitutes punishment in the relevant

sense requires a particularized assessment of the penalty imposed

and the purposes that the penalty may fairly be said to serve.”

Id. at 448. 

The FAA revoked Beauchemin’s pilot certificate pursuant to 14

C.F.R. § 61.15(a)(2), FAR § 61.15(a)(2). Section 61.15(a)(2)
1 It is undisputed that Beauchemin did not “use” his

pilot certificate in the commission of his offense. However, §

61.15(a)(2) does not contain a “use” requirement, Hernandez v.

N.T.S.B., 15 F.3d 157, 159 (10th Cir. 1994); therefore, use is

irrelevant to the issue of whether the regulation is remedial or

punitive for double jeopardy analysis.

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provides that a pilot’s certificate may be revoked or suspended if

the certificate holder has been convicted of a federal or state

crime involving a controlled substance. Beauchemin does not

dispute that he was convicted of engaging in a continuing criminal

enterprise with the intent to possess and distribute 24,000 pounds

of marijuana.1 Beauchemin’s sole challenge is that revocation of

his pilot certificate after he has been convicted and sentenced for

the criminal offense is a second punishment which constitutes

double jeopardy.

In Pinney v. N.T.S.B., 993 F.2d 201, 203 (10th Cir. 1993), we

concluded that “it is reasonable to conclude that a pilot who has

violated a drug trafficking statute is also likely to violate

regulations concerning air safety.” See 38 Fed. Reg. 17,491 (1973)

(conviction for violating drug law clearly demonstrates a “tendency

to act without inhibition in an unstable manner without regard to

the rights of others”). Therefore, the civil penalty assessed

against Beauchemin bears a reasonable relationship to the

government’s interest in promoting air safety.

Revocation of a pilot certificate “is a remedy imposed to

enhance air safety and to promote the public interests.” Kolek v.
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Engen, 869 F.2d 1281, 1288 (9th Cir. 1989). We agree. Therefore,

Beauchemin’s double jeopardy argument fails.

The order of the NTSB affirming the revocation of Beauchemin’s

pilot certificate is AFFIRMED.

Entered for the Court:

James E. Barrett,

Senior United States

Circuit Judge